RBR/ KFM/ -7434-/. A2/HG1
RECEIVED
AUG
1993
IMI LIBRARY
NORTH CAROLINA
REGISTER
IN TfflS ISSUE
IN ADDITION
Health Services
NPDES Permit
PROPOSED RULES
Commerce
Dental Examiners
Environment, Health, and Natural Resources
Human Resources
Insurance
Justice
Physical Therapy Examiners
COHi
TITUl 11^
LIST OF RULES CODIFIED
RRC OBJECTIONS
RULES INVALIDATED BY JUDICIAL DECISION
CONTESTED CASE DECISIONS
ISSUE DATE: August 2, 1993
Volumes • Issue 9 • Pages 709 - 792
INFORMATTON ABOUT THE NORTH CAROLINA RFGTSTER AND ADMINLSTRATTVE CODE
NORTH CAROLINA REGISTER
TEMPORARY RULES
TTie North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.
State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.
The North Carolina Register is available by yearly subscription
at a cost of one hundred and five dollars (S105.00) for 24 issues.
Individual issues may be purchased for eight dollars (S8.00).
Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings,
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447.
Under certain emergency conditions, agencies may issue
temporary rules. Within 24 hours of submission to OAH, the
Codifier of Rules must review the agency's written statement of
findings of need for the temporary rule pursuant to the provisions in
G.S. 150B-21.1. If the Codifier determines that the findings meet
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If
the Codifier determines that the findings do not meet the criteria,
the rule is returned to the agency. The agency may supplement its
findings and resubmit the temporary rule for an additional review
or the agency may respond that it will remain with its initial
position. The Codifier, thereafter, will enter the rule into the
NCAC. A temporary rule becomes effective either when the
Codifier of Rules enters the rule in the Code or on the sixth
business day after the agency resubmits the rule without change.
The temporary rule is in effect for the period specified in the rule or
180 days, whichever is less. An agency adopting a temporary rule
must begin rule-making procedures on the permanent rule at the
same time the temporary rule is filed with the Codifier.
ADOPTION AMENDMENT, AND REPEAL OF
RULES
NORTH CAROLINA ADMINISTRATIVE CODE
The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.
Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public may request
a hearing); a statement of procedure for public comments; the text
of the proposed rule or the statement of subject matter; the reason
for the proposed action; a reference to the statutory authority for the
action and the proposed effective date.
Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule that
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.
When final action is taken, the promulgating agency must file
the rule with the Rules Review Commission (RRC). After approval
by RRC, the adopted rule is filed with the Office of Administrative
Hearmgs(OAH).
A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative Code
(NCAC).
Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or
before filing with OAH for publication in the NCAC.
The North Carolina Administrative Code (NCAC) is a
compilation and index of the administrative rules of 25 state
agencies and 38 occupational licensing boards. The NCAC
comprises approximately 15,000 letter size, single spaced pages of
material of which approximately 35% of is changed annually.
Compilation and publication of the NCAC is mandated bv G.S.
150B-21.18.
The Code is divided into Titles and Chapters. Each state agency
is assigned a separate title which is further broken down by
chapters. Title 21 is designated for occupational licensing boards.
The NCAC is available in two formats.
(1) Single pages may be obtained at a minimum cost of
two dollars and 50 cents (S2.50) for 10 pages or less,
plus fifteen cents (SO. 15) per each additional page.
(2) The full publication consists of 53 volumes, totaling in
excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the
full publication including supplements can be
purchased for seven hundred and fifty dollars
(S750.00). Individual volumes may also be purchased
with supplement service. Renewal subscriptions for
supplements to the initial publication are available.
Requests for pages of rules or volumes of the NCAC should be
directed to the Office of Administrative Hearings.
CITATION TO THE NORTH CAROLINA
REGISTER
The North Carolina Register is cited by volume, issue, page
number and date. 1:1 NCR 101-201, April 1, 1986 refers to
Volume 1, Issue 1, pages 101 through 201 of the North Carolina
Register issued on April 1, 1986.
FOR INFORMATION CONTACT: Office of
Administrative Hearings, ATTN: Rules Division, P.O.
Drawer 27447, Raleigh. North Carolina 27611-7447, (919)
733-2678.
NORTH
CAROLINA
REGISTER
Office of Administrative Hearings
P. O. Drawer 27447
Raleigh, North Carolina 27611-7447
(919) 733-2678
Julian Mann III,
Director
James R. Scarcella St.,
Deputy Director
Molly Masich,
Director ofAPA Services
Staff:
Ruby Creech,
Publications Coordinator
Teresa Kilpatrick,
Editorial Assistant
Jean Shirley,
Editorial Assistant
ISSUE CONTENTS
I. IN ADDITION
Health Services 709
NPDES Permit 710
II. PROPOSED RULES
Commerce
Alcoholic Beverage Control
Commission 711
Environment, Health, and
Natural Resources
Health Services 762
Human Resources
Medical Assistance 712
Social Services 733
Insurance
Medical Database Commission . . 737
Justice
Alarm Systems Licensing Board 761
Sheriffs' Education and Training
Standards Commission 738
Licensing Boards
Dental Examiners 763
Physical Therapy Examiners . . . 767
III. LIST OF RULES CODIFIED ... 769
IV. RRC OBJECTIONS 776
V. RULES INVALIDATED BY
JUDICIAL DECISION 779
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 780
Text of Selected Decisions
93 ABC 0087 785
VII. CUMULATIVE INDEX 790
NORTH CAROLINA REGISTER
Publication Schedule
(January 1993 - December 1993)
Last Day
Earliest
F^rliest
for Elec-
Date for
Date for
Last Day
♦Earliest
Issue
Last Day
tronic
Public
Adoption
to Submit
Effective
Date
for Filing
Filing
Hearing
by Agency
to RRC
Date
if^j^^i^jfi^
>{<>i<>f<>i<>i<>i<>i<
****>i<'i<>i<
*******
*******
*******
*******
01/04/93
12/09/92
12/16/92
01/19/93
02/03/93
02/20/93
04/01/93
01/15/93
12/22/92
12/31/92
01/30/93
02/14/93
02/20/93
04/01/93
02/01/93
01/08/93
01/15/93
02/16/93
03/03/93
03/20/93
05/03/93
02/15/93
01/25/93
02/01/93
03/02/93
03/17/93
03/20/93
05/03/93
03/01/93
02/08/93
02/15/93
03/16/93
03/31/93
04/20/93
06/01/93
03/15/93
02/22/93
03/01/93
03/30/93
04/14/93
04/20/93
06/01/93
04/01/93
03/11/93
03/18/93
04/16/93
05/01/93
05/20/93
07/01/93
04/15/93
03/24/93
03/31/93
04/30/93
05/15/93
05/20/93
07/01/93
05/03/93
04/12/93
04/19/93
05/18/93
06/02/93
06/20/93
08/02/93
05/14/93
04/23/93
04/30/93
05/29/93
06/13/93
06/20/93
08/02/93
06/01/93
05/10/93
05/17/93
06/16/93
07/01/93
07/20/93
09/01/93
06/15/93
05/24/93
06/01/93
06/30/93
07/15/93
07/20/93
09/01/93
07/01/93
06/10/93
06/17/93
07/16/93
07/31/93
08/20/93
10/01/93
07/15/93
06/23/93
06/30/93
07/30/93
08/14/93
08/20/93
10/01/93
08/02/93
07/12/93
07/19/93
08/17/93
09/01/93
09/20/93
11/01/93
08/16/93
07/26/93
08/02/93
08/31/93
09/15/93
09/20/93
11/01/93
09/01/93
08/11/93
08/18/93
09/16/93
10/01/93
10/20/93
12/01/93
09/15/93
08/24/93
08/31/93
09/30/93
10/15/93
10/20/93
12/01/93
10/01/93
09/10/93
09/17/93
10/16/93
10/31/93
11/20/93
01/04/94
10/15/93
09/24/93
10/01/93
10/30/93
11/14/93
11/20/93
01/04/94
11/01/93
10/11/93
10/18/93
11/16/93
12/01/93
12/20/93
02/01/94
11/15/93
10/22/93
10/29/93
11/30/93
12/15/93
12/20/93
02/01/94
12/01/93
11/05/93
11/15/93
12/16/93
12/31/93
01/20/94
03/01/94
12/15/93
11/24/93
12/01/93
12/30/93
01/14/94
01/20/94
03/01/94
* The "Earliest Effective Date" is computed assuming that the agency follows the
publication schedule above, that the Rules Review Commission approves the rule at
the next calendar month meeting after submission, and that RRC delivers the rule to
the Codifier of Rules five (5) business days before the 1st business day of the next
calendar month.
IN ADDITION
I
I his Section contains public notices that are required to be published in the Register or have been
approved by the Codifier of Rules for publication.
TITLE 15A - DEPARTMENTT OF ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
COMMISSION FOR HEALTH SERVICES
Notice of Intent to Adopt a Temporary Rule Amendment
J\otice is hereby given that the EHNR-Convnission for Health Services intends to amend DETERMINATION
OF FINANCIAL ELIGIBILITY cited as ISA NCAC24A .0202 in a temporary action. Eff. August 9. 1993, For
a Period of 180 Days or Until the Permanent Rule Becomes Effective, Whichever is Sooner.
1 he Commission for Health Services will decide on the proposed temporary amendment to establish income
scales at its regularly scheduled meeting on August 4, 1993. This meeting starts at 10:00 a.m. and will be
held in the Norton Board Room, Cooper Memorial Health Building - 6th Floor, 225 N. McDowell St.,
Raleigh, NC
I
8:9
NORTH CAROLINA REGISTER
August 2, 1993
709
IN ADDITION
STATE OF NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
POST OFFICE BOX 29535
RALEIGH, NORTH CAROLINA 27626-0535
PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL NPDES PERMIT
Public notice of intent to issue a State National Pollutant Discharge Elimination System (NPDES) General
Permit for Point Source Discharges associated with the following activity:
1. NPDES General Permit No. NCG550000 for the point source discharge of domestic
wastewater associated with single family residences and other similar discharges.
On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General Statutes
of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina
Environmental Management Commission proposes to issue State NPDES General Permits for the discharges
as described above.
INFORMATION: Copies of the draft NPDES General Permit and Fact Sheet concerning the draft Permit is
available by writing or calling:
Ms. Coleen Sullins, P.E., Supervisor
NPDES Permits Group
Water Quality Section
N.C. Division of Environmental Management
P.O. Box 29535
Raleigh, North Carolina 27626-0535
Telephone (919) 733-5083
Persons wishing to comment upon or object to the proposed determinations are invited to submit their
comments in writing to the above address no later than September J_i 1993 . All comments received prior to
that date will be considered in the final determination regarding permit issuance. A public meeting may be
held where the Director of the Division of Environmental Management finds a significant degree of public
interest in any proposed permit issuance.
The draft Permit, Fact Sheet and other information are on file at the Division of Environmental Management,
512 N. Salisbury Street, Room 925-D, Archdale Building, Raleigh, North Carolina. They may be inspected
during normal office hours. Copies of the information on file are available upon request and payment of the
costs of reproduction. All such comments and requests regarding this matter should make reference to Permit
Number NCG550000 - Single Family Residences.
Date: July 16, 1993 A. Preston Howard, Jr., P.E., Director
Division of Environmental Management
710 8:9 NORTH CAROLINA REGISTER August 2, 1993
PROPOSED RULES
TITLE 4 - DEPARTMENT OF COMMERCE
Notice is hereby given in accordance with G.S. 150B-21.2 that the N.C. Alcoholic Beverage Control
Commission intends to amend rule cited as 4 NCAC 2R . 1502.
1 he proposed effective date of this action is November 1, 1993.
1 he public hearing will be conducted at 10:00 a.m. on September 17, 1993 at the ABC Commission Hearing
Room, 3322 Gamer Road, Raleigh, N. C.
Ixeasonfor Proposed Action: To raise mark-up percentage for profit for local ABC boards, as authorized
by G.S. 18B-804(b)(3), to help offset rising costs and stagnant sales volume.
(comment Procedures: Written comments and arguments should be submitted prior to September 17, 1993
to the ABC Commission, P. O. Box 26687, Raleigh, NC 2761 1-6687. Persons desiring to speak at the hearing
are requested to notify the Administrator prior to September 1 7.
Piscal Note: This Rule affects the expenditures or revenues of local funds. A fiscal note was submitted to
the Fiscal Research Division on July 1, 1993, OSBM on July 1 , 1993, N. C. League of Municipalities on July
1 , 1993, and N.C. Association of County Commissioners on July 1, 1993.
CHAPTER 2 - ALCOHOLIC BEVERAGE CONTROL COMMISSION
SUBCHAPTER 2R - ORGANIZATIONAL RULES: POLICIES AND PROCEDURES
SECTION .1500 - PRICING OF SPIRITUOUS LIQUOR
.1502 MARKUP FORMULA
(a) On every delivered case of spirituous liquors, there is to be added a 77.5250 78.8400 percent markup,
which is derived by the following formula: (x) equals the base price of the case, including freight and bailment
charges. TTiirty Five Thirty-six hundredths percent equals the markup allowed local boards; therefore,
1.3500(x) 1.3600(x) equals the delivered case cost plus the 35.00 36.00 percent local markup, or the "retail
price," excluding all taxes.
Example: .350000(x) .360000(x) local markup
■ 37 8 000(x) .380800(x) state tax [28% of 1.3500(x) 1.36Q0(x) 1
■0 4 7250(x) .047600(x) state tax retained locally [3.5% of 1.3500(x) L3600£2Ll]
.775250(x) .788400 total markup
(b) The selling price of spirituous liquor, which includes the cost of goods, local markup and all taxes, is
derived by following these steps:
(1) Determine the subtotal case cost by adding base case cost, freight and bailment together;
(2) Multiply the subtotal case cost by 1.775250 1.788400 , to four decimals;
(3) Add the bailment surcharge as determined by the commission;
(4) Divide the result by the number of bottles in the case;
(5) Add five cents ($.05) rehabilitation tax [Add one cent ($.01) for bottles 50 ml. or less];
(6) Add five cents ($.05) for the local board charge [Add one cent ($.01) for bottles 50 ml. or less];
(7) Round the result to an integer evenly divisible by five cents ($.05). The breaking point is one cent
($.01), 1 mill; the mill is underlined.
(A) If cent equals $ .00, it remains $ .00;
(B) If cent equals $ .05, it remains $ .05;
(C) If cent equals $ .010, (mill is 0), round downward to $ .00;
8:9 NORTH CAROLINA REGISTER August 2, 1993 711
PROPOSED RULES
(D) If cent equals $ .OH, (if mill is 1-9), round upward to $ .05;
(E) If cent equals $ .060, (mills is 0), round downward to $ .05;
(F) If cent equals $ .061, (if mill is 1-9), round upward to $ .10;
(G) If cent equals $ .411, -42, .43, .44, round upward to $ .45;
(H) If cent equals $ .461, -47, .48, .49, round upward to $ .50;
(8) The result is the retail selling price per bottle.
Statutory Authority G.S. 18B-203(a)(3); 18B-207; 18B-804.
TITLE 10 - DEPARTMENT OF
HUMAN RESOURCES
SUBCHAPTER 26H - REIMBURSEMENT
PLANS
l\otice is hereby given in accordance with G.S.
150B-21.2 that the DHR/Division of Medical
Assistance intends to adopt rules cited as 10 NCAC
26H . 0305 - . 0309 and amend rules cited as . 0301
- .0304.
1 he proposed effective date of this action is
November 1, 1993.
1 he public hearing will be conducted at 1:30
p.m. on September 1 , 1993 at the North Carolina
Division of Medical Assistance, 1985 Umstead
Drive. Room 132. Raleigh. NC 27603.
Jxeason for Proposed Action: Rules necessary to
establish more reasonable reimbursement based on
extensive review by Division of Medical Assistance.
It's also much more detailed on what are allow-
able costs and proper procedures for Division of
Medical Assistance.
SECTION .0300 - ICF-MR
PROSPECTIVE RATE PLAN
.0301 PAYMENT FOR SERVICES -
PROSPECTIVE REIMBURSEMENT
PLAN FOR ICF-MR FACILITIES
Beginning — Octob e r, — W^4 — Interm e di ate — Care
Faciliti e s — M e ntal R e tardation (ICF MR) ohall bo
r e imburs e d — proopootis' e ly — as — provid e d — m — Rul e
.0303 of this Section. All certified intermediate
care facilities ; mentally retarded (ICF-MR) partic-
ipating in the North Carolina Medicaid Program
are reimbursed on a prospective basis as set forth
hereunder, except that state-operated facilities shall
be reimbursed their reasonable and allowable costs
in accordance with the Medicare principles of
reimbursement and with the applicable provisions
of this plan. TTiis plan is developed in accordance
with the requirements of 42 CFR 447 Subpart C ;
Payment for Inpatient Hospital and Lonp-Term
Care Facility Services. Providers shall comply
with all federal regulations and with the provisions
of this plan.
Lyom/nent Procedures: Written comments con-
cerning these rules must be submitted by Septem-
ber 1, 1993. to: Division of Medical Assistance.
1985 Um^itead Drive. Raleigh. NC 27603 ATTN:
Clarence Ervin. A PA Coordinator. Oral comments
may be presented at the hearing. In addition, a
fiscal impact statement is available upon written
request from the same address.
hidiJor's Note: These Rules were filed as tempo-
rary adoptions and amendments effective July 8,
1993 for a period of 180 days or until the perma-
nent rule becomes effective, whichever is sooner.
CHAPTER 26 - MEDICAL ASSISTANCE
Authority G.S. W8A-25(b); 108A-54; 108A-55:
S.L. 1985.C. 479, s.86;42 C.F.R. 447, Subpart C
.0302 REPORTING REQUIREMENTS
(a) Each facility that r e c e iv es paym e nts from th e
North Carolina Medicaid Program must prepare
and submit a r e port of its costs and oth e r financial
information relat e d to r e imburs e m e nt annually.
Th e r e port mu s t includ e costs from a fiscal p e riod
b e ginning on July 1 and e nding on Jun e 30 and
must b e s ubmitt e d to the state on or before the
S e pt e mber 30 that imm e diat e ly follows th e June 30
year e nd. — A n e w provid e r mu s t s ubmit a r e port
for th e p e riod b e ginning with th e dat e of c e rtifioa
tion and e nding on Jun e 30. — Faciliti e s that file
r e ports aft e r th e du e dat e will b e charg e d a p e nalty
of up to fiv e hundred dollars ($500.00) p e r day for
e ach day aft e r S e pt e mb e r 30 that th e r e port is
d e linquent. — Th e Divi s ion of M e dical A ss i s tanc e
712
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
may extend tho d e adlin e for filing tho report if, in
its viow, good oaus e e xiots for th e d e lay. — Pef
provid e rs with oost r e porting p e riods e nding on a
date othor than Juno 30 whioh w e r e enroll e d in th e
Medicaid program prior to July — \-, — 19 8 6, this
provision shall booom e e ff e ctive for th e fiscal
period ending Juno 30, 19 8 8.
(b) Thos e oost reports shall d e tail tho providers
oost for the e ntir e r e porting p e riod, or for th e
period of participation in tho plan if less than a full
oost r e porting y e ar, for allowabl e costs. ¥be
allowable r e asonable, and n e c e ssary costs of any
sorvio e o are d e t e rmined in aooordano e with r e gula
tions as defined in th e HIM 15 manual, and adopt
ed — by — r e fer e no e — pursuant — te — NCGS — 150B
1 4 (a)(2)(o), e stablishing th e m e thod or methods to
bo us e d and the it e ms includ e d.
(c) jMlowabl e oosts will b e r e corded on th e basis
of g e nerally aoo e pt e d accounting principl e s using
tho accrual — method of accounting e xcept that
governmental institutions will hav e th e option of
using th e accrual or oaah — m e thod of aooounting.
(d) Each oost report will b e v e rified by th e state
ag e noy — or it s — roprosontativ e — for oomplotoness,
accuracy — afid — reasonableness — through — a — desk
revi e v i '. — Bosk reviews ar e to b e compl e t e d within
six months from tho date of submission. — A desk
audit or field audit of th e oost r e port will b e p e r
formed as r e quir e d. — All oost r e ports will b e d e sk
r e vi e w e d in aooordano e with standard proc e dur e s.
On sit e audits will bo perform e d in aooordano e
with — applicabl e — state — aed — f e d e ral — lews — and
r e gulations.
^e) — Provid e rs, with th e prior approval of th e
Division of M e dical Assistance, may fil e joint or
combin e d oost reports for multipl e facilities if
thos e faciliti e s are und e r common own e rship or
control, op e rat e as a r e asonably coh e r e nt unit
(e.g.. share staff or other resources), — shar e a
common management and aooounting structur e
( e .g.. singl e home office), and are in reasonably
olooo g e ographic proximity. The Division of
Medical AssiBtanoo shall assign a single common
per diem rat e to all th e faciliti e s in e ach group that
files a singl e combined oost report.
(a) Financial reports shall include the following:
(1) Budget reports: Each provider shall
include appropriate budget information
in its application for an initial rate for a
new facility:
(A) The budget should reflect the project-
ed annual operating results of each of
the two years subsequent to the com-
mencement of operating said facility.
(B) The budget information used to sup-
port the Certificate of Need award
shall be provided to the Division of
Medical Assistance on or before 30
days prior to the enrollment of said
facility by the Medicaid program.
(C) Budgets are not deemed to be appro-
priately filed unless they are properly
prepared, in accordance to guidelines
established by the Division of Medical
Assistance.
(2) Cost reports: Each facility that receives
payments from the North Carolina
Medicaid Program shall prepare and
submit a separate annual cost report of
its costs, a working trial balance related
to reimbursement, and other financial
information as requested by the Divi-
sion of Medical Assistance. Providers
that have an approved combined uni-
form rate in accordance with Rule
.0304 Paragraph (n) of this reimburse-
ment plan shall file a combined cost
report that is su pported by the individu-
al facility cost reports. For these pro-
viders, the combined cost report should
be filed with the Division of Medical
Assistance Audit Section while the
individual facility cost reports should be
filed with the Division of Medical
Assistance Rate Setting Section.
(A) The cost report shall cover a 12
month period, from July j_ to the
following June 30. unless another
time frame is specified by the Divi-
sion of Medical Assistance.
(B) The cost report shall be submitted to
the state on or before the September
30 that immediately follows the June
30 year end. The Division of Medi-
cal Assistance may grant an extension
of time of up to 30 days for filing the
cost report, upon showing of just
cause in writing by the provider.
(C) For new facilities a cost report shall
be submitted for the period beginning
with the date of certification and
ending on the following June 30.
(D) The cost report shall be submitted on
the medium and in the format based
on the Chart of Accounts specified by
the Division of Medical Assistance.
All costs shall be shown on the cost
reports in accordance with guidelines
established by the Division of Medical
Assistance. A cost report that does
8:9
NORTH CAROLINA REGISTER
August 2, 1993
713
PROPOSED RULES
not meet the requirements of the
Division of Medical Assistance is
141
ID
deemed not to be filed.
Currently filed cost reports
shall
reflect the decisions and judgments
expressed by the Division of Medical
Assistance auditors on previous cost
reports.
(F) All related organizations shall file a
Medicaid cost statement identifying
their costs, adjustments to costs, and
allocation of costs along with the ICF-
MR facility's cost report. A home
office, or parent company, shall be
recognized as a related organization.
Auditable records to support these
costs shall be made available to the
Division of Medical Assistance and its
designated contract auditors. Undoc-
umented costs shall be disallowed for
Medicaid reimbursement.
(G) Cost reports should clearly identify
related party transactions. Failure to
do so may result in the related cost
being disallowed for Medicaid reim-
bursement purposes.
(b) Additional information reporting require-
ments for facilities shall include, but not be limited
to. the following:
(1) Each facility providing day treatment
services shall be required to submit, in
conjunction with the cost report, a
separate report itemizing the actual
expense attributable to the provision of
day treatment services and the actual
number of client days associated with
said expense. Said report shall be in
the format approved by the Division of
Medical Assistance.
(2) Each provider operating a facility, upon
the request of the Division of Medical
Assistance, shall submit statistical data
and other information relevant to the
administration and operation of said
facility. Such reports shall be submit-
ted within the time frames authorized in
the request.
(3) Each provider operating a facility shall
file with the Division of Medical Assis-
tance, in conjunction with the annual
cost report, a separate listing of all
clients who were served during the
period covered by the cost report. Said
report shall be in the format approved
by the Division of Medical Assistance.
15}
Each provider that issues an annual
report to its shareholders shall file a
copy of said report with the Division of
Medical Assistance. Said report shall
be filed within 30 days of its issuance
to the shareholders.
Each provider that has a compensatory
stock option plan shall file a copy of
said plan with the Division of Medical
Assistance, within 30 days of ks imple-
mentation.
16}
A provider shall file an information
report with the Division of Medical
Assistance within 30 days of receiving
notification from either the North Caro-
lina Department of Revenue or the
Internal Revenue Service that items,
previously reported and allowed on a
cost report, have been disallowed on
the provider's associated tax return.
(c) Requirements for certification of financial
reports.
Each provider that operates a facility
shall complete the required financial
reports in accordance with the follow-
ing rules and in the order of priority
stated:
m
lAl
(B) Costs
Cost shall be represented in accor-
dance with the specific provisions of
the plan as set forth in this Rule.
shall be reported in
the Medicare
conformance
be
with
Provider Reimbursement Manual,
HCFA 15. which is incorporated by
reference with subsequent changes
and amendments pursuant to G.S.
150B-14(a)(2)(C). Said manual is
commonly referred to as the HIM- 15
manual.
(C) Costs shall be reported in
conformance with generally accepted
accounting principles.
(D) Governmental institutions have the
option of using the accrual or cash
method of accounting.
(2) Cost reports prepared for facilities shall
be certified for their compliance with
Subparagraph (c)(1) of this Rule by the
provider's executive director or
designated officer.
(3^ Budget reports prepared for facilities
shall be certified for their fair
representation of anticipated
disbursements and receipts related to
the Medicaid ICF-MR program by the
714
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
provider's executive
designated officer.
director or
(d") Requirements for the revision of financial
reports shall include the following:
(1) In the event the Division of Medical
fflay — be — mad e — te — th e s e — base — year — costs — te
Qooommodat e chang e s in applicabl e f e d e ral and
stat e laws or r e gulations.
{b) — The p e r di e m rate for each provid e r in the
bas e y e ar shall b e d e termin e d by dividing th e total
allowable costs in that y e ar by th e total actual
number of pati e nt days.
Assistance determines a cost report
does not meet the requirement of the
Division of Medical Assistance during
a detailed review, the provider shall
have 30 days from the date of said
notification to submit a revised cost factors for e ach — int e rv e ning y e ar comput e d
report or additional data. Such revised
data or report shall be certified by the
provider's executive director or
(e) Th e bas e y e ar p e r di e m rat e for e ach
provider will b e inflat e d from th e bas e year to the
year in which th e rat e will apply using inflation
i3i
£3)
designated officer.
In the event that the provider discovers
that a report submitted to the Division
of Medical Assistance is incomplete,
inaccurate or incorrect the provider
shall immediately notify the Division of
Medical Assistance that such error(s)
exist. The provider shall have 30 days
from the date of said notification to
submit a revised report or additional
data. Such data or report shall meet the
certification requirements of the report
being corrected.
Failure to file the corrected reports on
a timely basis in accordance to either
Subparagraph (d)(1) or £2} of this Rule
shall result in the related report being
considered not filed and subject to the
provisions under this Rule related to the
failure to file said reports. However.
the Division of Medical Assistance may
grant an extension of time of up to 30
days to file said corrected reports, upon
the showing of just cause by the
provider in writing.
Authority G.S. 108A-25(b); 108A-54; 108A-55;
S.L. 1985, c. 479. s.86; 42 C.F.R. 447. Subpart
C.
.0303 REQUIREMENTS FOR FINANCIAL
RECORDS
(a) Prosp e ctiv e rat e s for e ach ICF MR provid e r
shall b e d e t e rmin e d annually to b e e ff e ctiv e for a
12 month p e riod b e ginning July 1 and e nding th e
following Jun e 30. — Thes e rat e s shall b e d e rived
from actual cost data from a bas e y e ar to b e
s e l e ct e d by th e state presented in cost r e ports
submitt e d to and audit e d by th e stat e ag e ncy. Th e
y e ar to which this cost r e port appli e s shall bo
known ao th e bas e y e ar. — Appropriate adjustments
-as
follows:
fi^ Cost data from th e base year cost
r e ports will b e aggr e gated to d e t e rmin e
th e proportion (p e rcent of total) of cost
in e ach of th e following oatogorios:
{A) — Labor;
{B) — Oth e r Op e rating;
(€) — Capital which includ e s the cost for
us e or own e rship of physical plant
and movabl e e quipm e nt.
(S) Inflation rat e s for e ach category will be
e stablish e d using official e stimates of
inflation — provided — by — the — North
Carolina Offic e — ef — Budget — and
Manag e m e nt for th e y e ar in which the
rat e shall apply.
(A) — Labor costs shall b e inflated by the
estimate of th e incr e as e in Av e rag e
Annual — S e rvic e — Wages — m — North
Carolina. — adjust e d — for any — sp e cial
factors r e lat e d to ICF MR p e rsonn e l,
how e v e r, salari e s for all p e rsonnel
shall — be — limit e d — te — lev e ls — ef
comparabl e positions in state own e d
faciliti e s or l e v e ls sp e cifi e d by th e
Dir e ctor of th e Divi s ion of M e dical
Assistanc e ;
(B) — Oth e r costs shall be inflat e d by th e
estimate of the Implicit Price D e flator
for th e U. S. Gross National Product;
however, manag e m e nt f ee s shall b e
limit e d — te — a — stHB — equal — te — seven
p e rc e nt of th e maximum ICF rat e in
th e stat e during th e curr e nt fiscal
(€) — Capital cost shall not b e inflat e d.
(^) Rat e s d e t e rmin e d in 10 NCAC 26H
.0303(o)(2) will b e multipli e d tim e s the
p e rcentag es d e t e rmin e d in — 10 NCAC
26H .O303(o)(l) to obtain a w e ight e d
inflation rate for e ach cat e gory' of cost.
^4) The weighted rates determin e d in — tO
NCAC 26H .0303(c)(3) will b e add e d
to obtain th e composit e inflation rate.
8:9
NORTH CAROLINA REGISTER
August 2, 1993
715
PROPOSED RULES
f§-) No inflation factor for any provid e r will
exc<!43d th e maximum amount p> e rmitt e d
for that provid e r by federal or state law
or regulation.
(d) Tli e prospective rat e establish e d in Paragraph
(c) of this Rul e , will b e paid to th e provider for
esePi Medicaid e ligibl e day during th e year in
which it will apply. — Th e s e prosp e ctiv e rat e s may
bo det e rmin e d after th e date in which th e y ar e to
go into effect and paid r e troactiv e ly to that dat e .
fe-) — If allowable costs ar e l e ss than prosp e ctiv e
paym e nts — during — a — eest — r e porting — p e riod, — a
provid e r may r e tain on e half of th e diff e r e nc e
between costs and paym e nt s , up to an amount of
five dollar s ($5.00) p e r pati e nt day. — Th e balanc e
of unexp e nd e d paym e nts must be r e fund e d to the
Division of M e dical A ss istanc e .
f4^ Eff e ctiv e — fef — faciliti e s — tbet — have — been
award e d a certificato of need on or aft e r January
-k — 1993. n e w provid e rs ar e thos e that hav e not
fil e d a cost r e port covering at l e ast on e full year of
normal op e rations. — A n e w provid e r's initial rat e
shaH — be — a — n e gotiat e d — pate — bas e d — upon — the
provid e r's proposed budg e t. — This rat e for a n e w
facility shall not e xc e ed th e av e rag e rat e being
allow e d for e xi s ting faciliti e s or any oth e r limit
e stablished in stat e law. — The rat e shall b e r e bofl e d
to th e actual co s t incurr e d in th e first full year of
normal op e rations in th e year after audit e d data for
that fir s t y e ar of normal op e rations is compl e t e d.
fg-) A — s p e cial — paym e nt — m — addition — te — t)w
prosp e ctive rate shall b e mad e in the year that any
provid e r chang es from the cash basis to th e accrual
basis of accounting for vacation leav e co s t s . — The
amount of this paym e nt s hall b e d e t e rmin e d in
accordanc e — w4th — Tttk — XVIII — allowabl e — eest
principl e s and shall e qual th e M e dicaid s har e of
th e vacation accrual that i s charg e d in th e y e ar of
th e change including th e cost vacation l e av e e arn e d
for that y e ar and all pr e vious y e ars l e s s vacation
leav e us e d or e xp e nd e d ov e r th e sam e period and
vacation — l e av e — accru e d — prior — te — the — date — &f
certification. — Th e paym e nt shall b e mad e as a
lump sum paym e nt that r e pr e s e nts th e total amount
du e for th e e ntir e fiscal y e ar. — An int e rim paym e nt
may b e mad e bas e d on a r e a s onabl e e stimat e of th e
cost of th e vacation accrual. — Th e paym e nt shall b e
adjust e d to actual cost aft e r audit.
(h) Start up costs ar e costs incurr e d by an ICF
.MR provid e r whil e pr e paring to provid e s e rvic e s.
It includ e s th e cost — incurr e d by providers — te
provide se rvic es at th e lev e l nec e ssary to obtain
c e rtification l e ss any r e v e nu e or grants r e lat e d to
s tart up. — The North Carolina M e dicaid Program
w414 — r e imbur se — th ese — s tart up — costs — ttp — te — a
maximum e qual to the facility's rat e times its beds
times — 1 20 days . TTiis reimbursem e nt will be
included in th e facility's per di e m rate. — These
start up costs will b e amortiz e d over 36 months
and will bo report e d as Administrativ e and G e n e ral
in th e op e rating cost r e p>ort. A start up cost r e port
will b e r e quir e d to be submitted along with the
initial cost report submitt e d by th e n e w ICF MR
provid e r — once — c e rtifi e d — te — participate — m — tbe
M e dicaid program. — S e e Paragraph (a) of this Rule
fef — initial — eest — r e porting — r e quir e ments. Ne
advanc e of start up funds shall b e mad e . — TJhs
Paragraph will bo eff e ctiv e for faciliti e s that ar e
award e d a C e rtificat e of N ee d on or after January
I. 1992.
f)
fh) — Th e annual capital cost or lease e xp e ns e
limitation shall — apply:
4y
H^
To all facilities with 21 or mor e b e ds
and to faciliti e s consisting of multiple
d e tached buildings in which at least on e
contains — e ight — c e rtifi e d — b e ds. The
facilities covered by this — limit shall
hav e — been — award e d — a — C e rtificat e — ef
Need before January — h — 1993. — The
annual capital cost or lease exp e nse
limit shall b e the lesser of actual cost or
th e s um of Subparagraphs (i)(l)(A) and
(B) of this Rule as follows:
■fA) — The annual d e pr e ciation on plant and
fix e d — e quipm e nt — that — would — be
comput e d on ass e ts equal to thirty
thou s and dollars ($30,000) p e r b e d
(capital r e cov e ry base) during — fiscal
year 19 8 2 83 adjust e d for changes in
the following cost ind e x e s:
<M For th e p e riod after 19 8 2 8 3 and
pfief — te — 1992 93 — the — capital
r e cov e ry base shall b e adjust e d
for chang e s in the Dodg e Building
Gest — Ind e x — of North — Carolina
citi e s.
^+i-) For th e p e riod after 1991 92 the
capital — r e cov e ry — base — shaH — be
adjust e d — fef — chang e s — m — th«
implicit pric e deflator fef
r e sid e ntial structur e s as provided
by th e Offic e of Stat e Budg e t and
Manag e m e nt. Depr e ciation
e xp e nse shall b e computed using
the — s traight — 1+fte — m e thod — ef
d e preciation and the us e ful lif e
standards — e stablish e d — by — the
Am e rican Hospital A ss ociation.
■(©) — Ah — int e r e st — allowanc e — e qual — te — 1-0
p e rc e nt of th e capital recovery base
i
€
716
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
u s od to oomput e annual doprooiation
on plant and fix e d equipm e nt.
(€) — Th« — annual — oapital — eest — ef — lease
oxponoo limit does not apply to l e as e s
in off e ot prior to August 3, 19 8 3.
(3) To all faoilitioo that have boon award e d
e — Certifioat e — of Nood — on — or — after
January 1 , 1 993 , th e annual capital cost
or loQoo exp e ns e shall b e limit e d to th e
loss e r of aotual oost or th e fair and
roasonabl e — doprooiation — and — intorost
e xp e ns e — oaloulat e d — en — the — capital
r e cov e ry bas e d in offoot at th e tim e of
certification and enrollm e nt into th e
Medicaid program.
(A^ — Depr e ciation exp e ns e shall be
comput e d — using — the — straight — line
method of d e preciation and th e us e ful
life — standards — e stablish e d — by — the
Am e rican Hospital Association.
(B) — Inter e st e xponso is comput e d using a
(Gf
10 p e rcent rat e of int e r e st.
Th e — capital recov e ry
bas e
OBtabliohod as thirty thousand dollars
($30,000) — ef — plant — and feted
equipm e nt asoots p e r b e d during th e
fiscal y e ar 1982 83 adju s t e d for th e
changes in tho cost ind e x e s contain e d
in Subparagraphs (i), (1)(A), (i) and
(ii) of this Rul e .
{©) — R e cov e ry — of th e oost — of mat e rial
additions to plant and fix e d e quipm e nt
subs e qu e nt — te c e rtification and
enrollment in th e M e dicaid program
s hall b e subject to r e vi e w on a cas e
by case basis.
(J) In addition to th e prospectiv e dir e ct p e r di e m
rates d e v e lop e d und e r thia Section, e ff e ctiv e July
4-; — 1992, an int e rim paym e nt add on will — be
appli e d to th e total rate to cov e r th e e stimat e d oost
requir e d und e r Titl e 29, Part 1910, Subpart Z,
S e ction — 1910.1030 of th e Cod e of F e d e ral
Regulations. — Th e int e rim rat e will b e s ubj e ct to
final s e ttlem e nt r e conciliation with r e asonabl e oost
to mo e t tho requirem e nts of Part 1910. — Th e final
settl e m e nt reconciliation will bo offeotuated during
tho annual oost r e port se ttl e m e nt proc e ss. — An
int e rim rato add on to th e prosp e ctiv e rat e will b e
allow e d, subj e ct to final s e ttl e m e nt r e conciliation,
in subs o quont rat e p e riods until ad e quat e cost
history is available to includ e th e oost of m ee ting
tho requir e m e nts of Part 1910 in th e prosp e ctiv e
Each provider shall maintain facility s pecific
financial records which reflect all expenditures
incurred and revenues earned related to its ICF-
MR services in the Medicaid Program. In addi-
tion, the financial records shall properly and
clearly reflect all other sources of funds available
to the facility's Medicaid ICF-MR program.
(1) Such financial records shall provide clear
and precise justification and support for
entries included in the cost report, and
included in related budgets.
(2) The financial records shall include at a
minimum separate accounts for each type
of expense, revenue, and other funding
resources included in the annual cost
report. All items on the cost report shall
be supported by clear and precise finan-
cial records. Cost reports that fail this
requirement are deemed to be improperly
filed and subject to the provisions under
this Rule related to the failure to file said
reports .
(3) Effective July \^ 1993. property owner-
ship and use, housekeeping, and opera-
tion and maintenance of plant costs relat-
ed to day treatment services should be
separately accounted for on the
provider's books and records . Said costs
should be reported separately as direct
care costs on the 1994 cost report,
consistent with guidelines established by
the Division of Medical Assistance.
Authority G.S. 108A-25(b); W8A-54; 108A-55;
S.L. 1985, C.479, s. 86; 42 C.F.R. Part 447.
Subpart C.
.0304 RATE SETTING METHODS
FOR NON-STATE FACILITIES
R e consid e ration r e vi e ws on rat e s mu s t b e fil e d in
writing within 60 days after a provid e r r e c e iv e s
notification — ©f — its — prosp e ctiv e — rate^ — Such
r e consid e ration — r e vi e ws — wiH — be — proc e ss e d — in
accordanc e with tho provi s ion s of 10 NCAC 26K .
(a) A prospective rate is determined annually for
each non-state facility to be effective for dates of
service for a \2 month rate period beginning each
July _L The prospective rate shall be paid to the
provider for every Medicaid eligible day during
the a pplicable rate year. The prospective rate may
be determined after the effective date and paid
retroactively to that date. Each non-state facility,
except those facilities where Paragraph (v) of this
Rule applies, shall be classified into one of the
following groups:
(1) Group i z Facilities with six beds or
less and provider owns less than 150
8:9
NORTH CAROLINA REGISTER
August 2, 1993
717
PROPOSED RULES
OJ
ill
i6j
total beds in said facilities.
Group 2 2 Facilities with six beds or
less and provider owns 150 or more
beds in said facilities.
Group 3 ; Facilities with seven to 15
beds.
Group 4 ; Facilities with 16 to 40 beds.
Group 5 ; Facilities with over 40 beds.
Group 6 2 Facilities with medically
fragile clients. For rate reimbursement
purposes under this plan, medically
fragile clients are defined as any
individual with complex medical
problems who have chronic debilitating
diseases or conditions of one or more
physiological or organ systems which
generally make them dependent upon
24-hour a day medical/nursing/health
supers'lsion or intervention.
Facilities shall be reclassified into
appropriate groups as defined in Paragraph (a) of
this Rule when necessary.
( 1 ) When a facility is reclassified, the rate
will be adjusted retroactively back to
the beginning of the current rate year.
This adjustment shall give full
consideration to any reclassification
facts or
ib]
based on the change in
circumstances during the
year.
Overpayments related to this retroactive
rate adjustment shall be repaid to the
Medicaid program. Underpayments
related to this retroactive rate
adjustment shall be paid to the
provider.
(2) The provider shall be given the
opportunity' to appeal the merits of the
reclassification of any facility, prior to
any decision by the Division of Medical
Assistance.
(3) The provider shall be notified in writing
30 days before the implementation of
new rates resulting from the
reclassification of any facility.
(4) The providers and the Division of
Medical Assistance shall make every
reasonable effort to ensure that each
and evePy' facility is properly classified
for rate setting purposes.
(c> Rates are derived from either filed, desk or
t~ield audited cost reports for a base year period to
be selected by the state. The rate setting impact of
a facility filing a less than full year's cost report in
the base year shall be fully considered by the
Division of Medical Assistance in determining the
appropriate per diem rate.
(d) Rates developed from filed cost reports may
be retroactively adjusted if there is found to exist
more than a two percent difference between the
filed per diem cost and either the desk audited or
field audited per diem cost for the same reporting
period. Rates developed from desk audited cost
reports may be retroactively adjusted if there is
found to exist more than a two percent difference
between the desk audited per diem cost and the
field audited per diem cost for the same reporting
period. The rate adjustment may be made after
written notification to the provider 30 days prior to
implementation of the rate adjustment.
(e) Each prospective rate consists of the sum of
the three components as follows:
(1) Property ownership and use (POU);
{2} Administrative and General and
Operation and Maintenance of Plant
(AG/OMP);
(3) Direct care.
(f) The POU rate is based on the Medicaid cost
reflected in the POU cost center as shown on the
1992 cost report format, except for POU costs
related to day programs are treated like all other
day program costs and therefore are considered to
be direct care costs.
(g) The AG/OMP rate is based on the sum of
the Medicaid cost reflected in the AG.
housekeeping and OMP cost centers as shown on
the 1992 cost report format, except for the
following:
(1) Labor related OMP costs are considered
to be direct care costs. Non-labor
related OMP costs, as reflected in the
1992 cost report format, are included as
OMP costs for determining the
AG/OMP component of a facility's
rate.
(2) Non-labor related housekeeping costs.
as reflected in the 1992 cost report
format, are included as OMP costs for
determining the AG/OMP component of
a facility's rate. Labor related
housekeeping costs are considered to be
direct care costs.
(3) OMP and housekeeping costs related to
day programs are treated like all other
day program costs and therefore are
considered to be direct care costs.
(h) The direct care rate is based on the Medicaid
cost as shown on the 1992 cost report format, less
the costs related to POU and AG/OMP discussed
in Paragraphs (f) and (g) of this Rule.
ijj The facility's total per diem rate shall be
718
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
limited to the lesser of the actual amount incurred
in the base year or the sum of the Fiftieth
percentile of each cost category, achieved by the
related facility group in the base year.
{]} Exceptions to the fiftieth percentile cost
category cap included in Paragraph (]} are, as
follows:
(1) Facility Group 2 z The per diem
amounts for each of the three cost
categories are to be limited to
reasonable amounts as determined by
the Division of Medical Assistance.
(2) Facility Group 3 z POU costs are
limited to an amount which is
determined to be reasonable by the
Division of Medical Assistance. The
rate for a facility in this group is the
lower of the facility's actual costs
during the base year, or the sum of the
POU, as determined in this
Subparagraph, and the AG/OMP and
direct costs, as determined in
accordance with Paragraph (i) of this
Rule.
(3) Facility Group 4 - Cost categories are
limited to the cost incurred in the base
year by the facility in this category
determined to represent fair and
reasonable costs for this group as
determined by the Division of Medical
Assistance.
(4) Facility Group 5 z Cost categories are
limited to the weighted average cost
incurred by the facilities in this group
during the base year.
(k) If. during a cost reporting period, allowable
costs are less than prospective payments that are
not based on an appeal, then a provider may retain
one-half of said difference, up to an amount of Five
dollars ($5.00) per patient day. TTie balance of
unexpended payments shall be refunded to the
Division of Medical Assistance. If allowable costs
are less than prospective payments that are based
on an appeal, then all of the unexpended payments
shall be refunded to the Division of Medical
Assistance. Cost in excess of a facility's total
prospective payment rate are not reimbursable.
(1) To compute each facility's current
prospective rate, the total rate established by
Paragraphs (a) through {]) of this Rule is adjusted
for price level changes since the base year. No
inflation factor for any provider shall exceed the
maximum amount permitted for that provider by
federal or state law and regulations.
(1) Price level adjustment factors are
computed using aggregate base year
costs in the following manner:
(A) Costs shall be separated into three
groups:
(i} Labor,
(ii) Non-labor .
(iii) Fixed.
(B) The relative weight of each cost group
is calculated to the second decimal
point by dividing the total costs of
each group (labor, nonlabor. and
fixed) by the total industry cost.
(C) Price level adjustment factors for each
cost group shall be established as
follows:
(i) Labor. The percentage change
for labor costs is based on the
projected average hourly wage of
North Carolina service workers .
Salaries for all personnel shall be
limited to levels of comparable
positions in state owned facilities
or levels speciFied by the Division
of Medical Assistance,
(ii) Nonlabor. The percentage change
for nonlabor costs is based on the
projected annual change in the
implicit price deflator for the
Gross National Product as
provided by the North Carolina
OfFice of State Budget and
Management,
(iii) Fixed. No price level adjustment
shall be made for this category.
The weights computed i_n
Subparagraph (1)(1)(B) of tlus Rule
shall be multiplied times the rates
computed in Paragraph (c) of this
Rule. These weighted rates shall be
added to obtain the composite
inflation rate.
im
(m) The initial rate for facilities that have been
awarded a Certificate of Need on or after January
_L 1993 is established at the lower of the feir and
reasonable costs in the provider's budget, as
determined by the Division of Medical Assistance.
or the projected costs in the provider's Certificate
of Need a pplication adjusted from the projected
opening date in the Certificate of Need application
to the current rate period in which the facility is
certified based on the price level change
methodology set forth in Paragraph (1) of this
Rule, or the average current rate paid to facilities
in the appropriate facility group as determined by
Division of Medical Assistance, or the rate
8:9
NORTH CAROLINA REGISTER
August 2, 1993
719
PROPOSED RULES
currently paid to the owning provider, if the
provider currently has an approved chain rate for
facilities in the related facility category. The rate
may be rebased to the actual cost incurred in the
first full year of normal operations in the year
after an audit of the first year of normal operation
is completed.
(1) For facilities that have been awarded a
Certificate of Need before January J_,
1993. the initial rate is established at
the lower of the fair and reasonable
costs in the provider's budget, as
determined by the Division of Medical
Assistance, or the projected costs in the
provider's Certificate of Need
application adjusted from the projected
opening date in the Certificate of Need
application to the current rate period in
which the facility is certified based on
the price level change methodology set
forth in Paragraph (1} of this Rule, or
the maximum rate paid to facilities in
the appropriate facility group, or the
rate currently paid to the owning
provider, if the provider has an
approved chain rate for facilities in the
related facility category. The rate may
be rebased to the actual cost incurred in
the first full year of normal operations
in the year after an audit of the first
year of normal operation is completed.
(2) In the event of a change in ownership,
the new owner receives no more than
the rate of payment assigned to the
previous owner. When a Group 2
provider purchases a facility currently
reimbursed as a Group i facility, the
purchased facility shall receive the
lower of the rate generated by the
Group 1 reimbursement methodology or
the rate generated by the Group 2
methodology.
(3) Except in cases wherein the provider
has failed to fi]e supporting information
as requested by the Division of Medical
Assistance, initial rates shall be granted
to new enrolled facilities no later than
60 days from the provider's filing of
properly prepared budgets and
supporting information.
(4) The initial rate for a new facility shall
be applicable to all dates of service
commencing with the date the facility is
certificated by the Medicaid Program.
(n) A provider with more than one facility in a
particular facility group, except Group S, may be
allowed to recover costs through a combined
uniform rate for all facilities in a particular facility
group.
(1) Combined uniform rates for chain
providers within a particular facility
group may be approved upon written
request from the provider and after
review by the Division of Medical
Assistance.
(2) An approved combined uniform rate
must be applied to all facilities owned
by the chain provider in a particular
facility group.
(3") In determining a combined uniform rate
for a particular facility group, the
weighted average of each facility's rate,
calculated in accordance to aU other
provisions of this Rule, shall be used.
(4) A combined uniform rate approved for
chain providers prior to July \^ 1993, is
considered to be void subsequent to
July li 1993. if the combined uniform
rate is inconsistent with the rate setting
provisions of this Section,
(o) Each out-of-state provider shall be
reimbursed at the lower of the applicable North
Carolina rate, as established by this plan for in-
state facilities, or the provider's per diem rate as
established by the state in which the provider is
located. An out-of-state provider is defined as a
provider that is enrolled in the Medicaid program
of another state and provides ICF-MR services to
a North Carolina Medicaid client in a facility
located in the state of enrollment. Rates for out-
to
subject
cost
of-state providers are not
settlement.
(p) Under no circumstances shall the Medicaid
per diem rate exceed the private pay rate of a
facility.
(q) Should the Division of Medical Assistance
be unable to establish a rate for a facility, based on
this Rule and the applicable facts known, the
Division of Medical Assistance may approve an
interim rate.
(1) The interim rate shall not exceed the
rate cap established under this Section
for the applicable facility group.
(2) The interim rate shall be replaced by a
permanent rate, effective retroactive to
the commencement of the interim rate,
by the Division of Medical Assistance,
upon the determination of said rate
based on this Rule and the applicable
facts.
720
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
(3) The provider shall repay to the Division
of Medical Assistance any overpayment
resulting from the interim rate
exceeding the subsequent permanent
rate.
(r) In addition to the prospective per diem rate
developed under this Section, effective July l^
1992, an interim payment add on shall be applied
to the total rate to cover the estimated cost
required under Title 29, Part 1910, Subpart Z,
Section 1910.1030 of the Code of Federal
Regulations. The interim rate shall be subject to
final settlement reconciliation with reasonable cost
to meet the requirements of Section 1910.1030.
The final settlement reconciliation shall be
effectuated during the aimual cost report settlement
process. An interim rate add on to the prospective
rate shall be allowed, subject to final settlement
reconciliation, in subsequent rate periods until cost
history is available to include the cost of meeting
the requirements of Section 1910.1030 in the
prospective rate. This interim add on shall be
removed, upon 10 days written notice to
providers, should it be determined by appropriate
authorities that the requirements under Title 29,
Part 1910, Subpart 2, Section 1910.1030 of the
Code of Federal Regulations do not apply to ICF-
MR facilities.
(s) All rates , except those noted otherwise in
this Rule, approved under this Rule are considered
to be permanent.
(t) In the event that the rate for a facility cannot
be developed so that it shall be effective on the
first day of the rate period, due to the provider not
submitting the required reports by the due date,
the average rate for facilities in the same facility
group, or the facility's current rate, whichever is
lower, shall be in effect until such time as the
Division of Medical Assistance can develop a new
rate.
(u) When the Division of Medical Assistance
develops a new rate for a facility for which a rate
was paid in accordance with Paragraph (t) of this
Rule, the rate developed shall be effective on the
first day of the second month following the receipt
by the Division of Medical Assistance of the
required reports. The Division of Medical
Assistance may, upon its own motion or upon
application and just cause shown by the provider,
within 60 days subsequent to submission of the
delinquent report, make the rate retroactive to the
beginning of the rate period in question. Any
overpayment to the provider resulting from this
temporary rate being greater than the final
approved prospective rate for the facility shall be
repaid to the Medicaid Program.
(v) ICF-MR facilities meeting the requirements
of the North Carolina Division of Facility Services
as a facility affiliated with one or more of the four
medical schools in the state and providing services
on a statewide basis to children with various
developmental disabilities who are in need of long-
term high acuity nursing care, dependent upon
high technology machines (i.e. ventilators and
other su pportive breathing a pparatus) monitors,
and feeding techniques shall have a prospective
payment rate that approximates cost of care. The
payment rate may be reviewed periodically, no
more than quarterly, to assure proper payment. A
cost settlement at the completion of the fiscal
period year end is required. Payments in excess
of cost are to be returned to the Division of
Medical Assistance.
(w) A special payment in addition to the
prospective rate shall be made in the year that any
provider changes from the cash basis to the accrual
basis of accounting for vacation leave costs. The
amount of this payment shall be determined in
accordance with Title XVI II allowable cost
principles and shall equal the Medicaid share of
the vacation accrual that is charged in the year of
the change including the cost of vacation leave
earned for that year and all previous years less
vacation leave used or expended over the same
time period and vacation leave accrued prior to the
date of certification. The payment shall be made
as a lump sum payment that represents the total
amount due for the entire fiscal year. An interim
payment may be made based on an estimate of the
cost of the vacation accrual. The payment shall be
adjusted to actual cost after audit.
(X) The annual prospective rate, effective
beginning each July J_^ for facilities that
commenced operations under the Medicaid
Program subsequent to the base year used to
establish rates . and therefore did not file a cost
report for the base year, shall be based on the
facility's initial rate, established in accordance with
Paragraph (m) of this Rule, and the applicable
price level changes, in accordance with Paragraph
tl) of this Rule.
Authority G.S. 108A-25(h): 108A-54: W8A-55;
]50B-1];S.L. 1985, c. 479, s. 86; 42 C.F.R. Part
447. Subpart C.
.0305 ALLOWABLE COSTS
(a) To be considered allowable, costs shall not
exceed fair and reasonable levels as determined by
Division of Medical Assistance, and shall be
8:9
NORTH CAROLINA REGISTER
August 2, 1993
721
PROPOSED RULES
re<quired to provide necessary client care under the
Medicaid Program .
(1) The cost of goods or services sold to
non-Medicaid clients shall be excluded
in determining the allowable client
related expenses reimbursable under the
Medicaid program. If the provider has
not determined the cost of such items,
the revenue generated from such sales
shall be used to offset the total cost of
such services.
(2) Examples of sources of such income
items include, but are not limited to:
supplies and drugs sold by the facility
for use by nonresidents.
telephone and telegraph services for
which a charge is made,
discount on purchases,
employee rental of living quarters.
cafeterias.
im
ID}
IE)
IF)
meals provided to staff or a client's
guest for which there is a charge,
(G) lease of office and other space by
concessionaires providing services not
related to intermediate care facility
services,
(H) interest income except for income
earned of qualified pension funds and
income from gifts or grants which are
donor restricted.
(h) Except where specific rules concerning
allowability of costs are stated herein, the Division
of Medical Assistance shall use as its major
determining factor in deciding on the allowability
of costs, the Medicare Provider Reimbursement
Manual, published by the U.S. Department of
Health and Human Services' Health Care
Financing Administration (HCFA). Where
specific rules stated herein or in HIM- 15 are silent
concerning the allowability of costs, the Division
of Medical Assistance shall determine allowability
of costs based on a case specific review taking into
consideration the reasonableness of said costs and
their relationship to client care and generally
accepted accounting principles, consistent with this
Rule.
(c) As determined by the Division of Medical
Assistance, expenses or portion of expenses
reported by an individual facility that are not
reasonably related to the efficient and economical
provision of care in accordance to the requirements
of this Rule, because of either the nature or
amount of the item, shall not be allowed.
(1) Reasonable compensation, as
determined by Division of Medical
Assistance, of individuals employed by
a provider is an allowable cost,
provided such employees are engaged
in client related functions and that the
compensation is reasonable in light of
industry historical data. The historical
data shall include, but not be limited to,
salary levels for similar services in the
same market in which the facility is
located.
(2) Payroll records shall be maintained by
the provider to substantiate the staffing
costs reported to tlie Division of
Medical Assistance. Payroll records
shall indicate each employee's
classification, hours worked, rate of
pay, and the functional area to which
the employee was assigned and actually
worked. If an employee performs
duties in more than one cost center, the
provider shall maintain periodic time
studies in order to allocate salary and
wage costs to the appropriate cost
centers, as determined by the Division
of Medical Assistance. These periodic
time studies shall be maintained in
accordance with the Medicare Provider
Reimbursement Manual.
(3) The Division of Medical Assistance
shall not reimburse costs related to
excess staff.
(4) Compensation for owners is allowable
only for duties which otherwise would
require the employment of another
individual in the provision of ICF-MR
related services. Said compensation
shall be limited to a reasonable amount.
as determined by the Division of
Medical Assistance, not to exceed that
paid in tlie local market place for
similar type duties. Compensation for
owners is not allowable where the
services are not related to tlie provision
of ICF-MR related services.
(d) As determined by the Division of Medical
Assistance, costs which are not properly related to
client care or treatment, and which principally
afford diversion, entertainment or amusement to
owners, operators, or employees of ttie facility
shall not be allowed.
(e) As determined by the Division of Medical
Assistance, costs for any interest expense related
to funding expenses in excess of a fair and
reasonable amount, or penalty imposed by
governmental agencies or courts and the costs of
722
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
insurance policies obtained solely to insure against
such penalty, shall not be allowed.
(f) As determined by the Division of Medical
Assistance, costs of contributions or other
payments to political parties, candidates or
organizations shall not be allowed.
(g) As determined by the Division of Medical
Assistance, only that portion of dues paid to any
professional association which has been
demonstrated to be reasonable in amount and
attributable to Medicaid Program related
expenditures other than for lobbying or political
contributions shall be allowed. The burden of
proof shall be on the provider to justify the
inclusion of any professional association dues.
Association budgets may be considered in
determining said justification.
(h) Any cost of the sale, purchase, alteration,
construction, rehabilitation or renovation of a
physical plant or interest in real property shall be
considered allowable up to the amount approved
by the Division of Medical Assistance. Cost is
limited by the applicable provisions of Paragraphs
(i) and (1) of this Rule. Cost is allowable only to
the extent it is necessary for the provision of
adequate client care under this Rule, as determined
by the Department of Human Resources. Cost, and
the associated financing, equal to or greater than
ten thousand dollars ($10,000) related to existing
facilities or the construction of replacement
facilities is subject to prior Division of Medical
Assistance approval. Providers shall not incur said
costs in a piece meal fashion in order to avoid the
ten thousand dollars ($10,000) limit. Failure to
acquire prior a pproval may result in the
disallowance of said cost from Medicaid
reimbursement.
(1) The provider shall file the necessary
documentation to support the
justification for the proposed
expenditure and related financing with
the Division of Medical Assistance no
later than 90 days prior to the proposed
transaction's commencement date.
(2) The Division of Medical Assistance
shall render a decision in writing to the
provider on the propriety of the
proposed transaction no later than 30
days prior to the proposed transaction's
commencement date.
(3) The time requirements of
Subparagraphs (h) (1) and (2) of this
Rule may be altered, with just cause
shown, by the Division of Medical
Assistance.
(4) For any transaction resulting in a
change of ownership, the valuation of
the asset shall be limited to the lesser of
the allowable acquisition cost of the
asset to the first owner of record who
has received Medicaid payment for said
asset, less any accumulated
depreciation, plus any allowable
improvements, or the acquisition cost of
the asset to the new owner. Payment of
rent by the Medicaid enrolled provider
to the lessor of a facility shall constitute
Medicaid payments under this Rule.
(5) Costs (including legal fees, accounting
and administrative costs, travel costs,
and the costs of feasibility studies)
attributable to the negotiation or
settlement of the sale or purchase of
any capital asset (by acquisition or
merger) for which any payment has
previously been made under Medicaid,
shall not be allowable for
reimbursement.
(6) An exception may be applied by the
Division of Medical Assistance to the
requirements of either Subparagraph (h)
(4) or {5j of this Rule, if jt can be
proven that the change in ownership
shall result in increasing the level of
care provided to the facility's clients up
to the level required by the Division of
Facility Services.
(A) In order to meet this exception, U
shall be proven that the previous
facility owner was not providing, and
was incapable of providing, adequate
client service, as determined by the
Department of Human Resources.
(B) The burden of proof in supporting this
exception is on the provider. The
provider shall request, in writing,
consideration of this exception from
the Division of Medical Assistance.
(C) Consideration of this exception may
result in the Division of Medical
Assistance allowing some or all of the
costs in Subparagraph (h) (5) for
Medicaid reimbursement.
(D) Consideration of this exception may
result in the Division of Medical
Assistance allowing a substitute
valuation for the transferred property
under Subparagraph (h) (4) that is
greater than the limit noted, but in no
instance greater than the acquisition
8:9
NORTH CAROLINA REGISTER
August 2, 1993
723
PROPOSED RULES
cost of the asset to the new owner.
(i) A facility's annual rental payments for real
property' may be considered an allowable cost
subject to the following conditions and the limits
included in Paragraph lil H) of this Rule:
(1) The lease is reviewed by and acceptable
to the Division of Medical Assistance.
if
(A]
mi
The lease shall not be acceptable
the associated asset(s) are not needed
for client care as determined by the
Division of Medical Assistance.
TTie lease shall not be acceptable if
alternate means of financing is
deemed available and more
economical.
determination
in making this
all aspects of the
economic impact of the lease shall be
examined, including length of lease,
the cost of the asset to the owner, and
the incremental rate of return
provided to the lessor. In addition.
the leasee's incremental implicit rate
of interest and financial position shall
be considered.
(C) The test of reasonableness shall take
into account the agreement between
the owner and the tenant regarding
the payment of related property costs.
(D) Absent clear justification to the
contrary . material capital
improvements to leased property that
are necessary to maintain the asset in
its ordinar\' state of usability at the
commencement of the lease, shall be
the responsibility of the lessor-
Examples of said costs are roof or
utility service replacement due to
reasons beyond the prudent control of
the lessee.
(E) Effective July L 1993. requests for
prior approval of new leases and lease
renewals must be submitted whenever
possible at least 120 days prior to the
last date for the exercise of the lease
or lease renewal option.
(F) Failure to acquire prior approval of
leases and lease renewals may result
in the disallowance of said cost from
Medicaid reimbursement.
(2) The lease shall be considered an arm's-
length transaction under HIM-15.
Leases failing the HIM-15 arm's-length
transaction test shall be reimbursed at
the leased asset's reasonable cost of
depreciation, interest, if any, and other
related expenses, including but not
limited to reasonable maintenance costs.
as determined by the Division of
Medical Assistance. It is the
responsibility of the provider to
maintain auditable records to document
these ownership costs to the Division of
Medical Assistance or its designated
contract auditors. Undocumented costs
may be disallowed.
(3) The lease amount is comparable to
similar leases for properties with
similar functions in the same
geographical area.
(4) The lease agreement between unrelated
parties shall include the provision that
the amount of rental to be paid by the
lessee to the lessor shall not, in any
event, exceed the amount approved by
the Division of Medical Assistance.
£[} Depreciation shall be an allowable cost when
based upon factors of historical costs and useful
life. Depreciation shall be subject to the
provisions of this Paragraph and Subparagraph
(j)(l) of this Rule. For the purpose of this Section:
(1) Unless an exception is made by the
Division of Medical Assistance, the
useful life shall be the higher of the
reported useful life or that from the
Estimated Useful Lives of Depreciable
Hospital Assets (1988 edition),
published by the American Hospital
Association, and available by writing to
the American Hospital Association. 840
Lake Shore Drive. Chicago. Illinois.
60611. In certain instances, a useful
life that is based upon historical
experience as shown by documentary
evidence and approved by the Division
of Medical Assistance may be allowed.
Should the provider desire a
depreciation rate different from that
based on the general Rule in
Subparagraph ii) Hi of this Rule, then
said provider shall make the request in
writing to the Division of Medical
Assistance. Upon review and analysis.
the Division of Medical Assistance shall
make a determination in writing as to
the reasonableness of said request.
(2) The depreciation method used shall be
the straight-line method.
{3} Unless an exception i^ granted by the
Division of Medical Assistance,
depreciated rates shall be applied
724
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
uniformly and consistently. m
accordance with this Rule and generally
accepted accounting principles. Should
the provider discover that depreciation
has been improperly recorded in prior
years, then the provider shall within 30
days report the error to the Division of
Medical Assistance. The impact of the
error on the provider's rate shall be
fully considered by the Division of
Medical Assistance and a rate
adjustment may be made, with due
cause shown. Failure to record
depreciation properly may result in
disallowance for Medicaid
reimbursement purposes.
(4) Depreciation paid to the provider by the
Medicaid Program shall be prudently
used by said provider to meet the
financial requirements of providing
adequate service to the ICF-MR clients.
(A) Payment to related parties for costs
disallowed by this Rule for Medicaid
reimbursement may be considered
imprudent use of depreciation
reimbursement.
(B) Imprudent use of Medicaid
reimbursement of depreciation may
result in the provider being required
by the Division of Medical Assistance
to fund the depreciation through a
qualified independent entity or
disallowance of depreciation for
Medicaid reimbursement.
(5) In order to substantiate depreciation
expense for Medicaid reimbursement
purposes, the property records shall
include, at a minimum, all of the
following, for assets purchased on or
after July 1. 1993:
(A) The depreciation method used.
(B) A description of the asset.
(C) The date the asset was acquired.
(D) The cost of the asset.
(E) The salvage value of the asset,
(F) The depreciation cost,
(G) The estimated useful life of the asset.
(H) The depreciation expense each year.
(I) The accumulated depreciation.
(6) The recovery of losses associated with
the disposal or abandonment of assets
used to provide necessary services to
the Medicaid program shall be
determined on a case by case basis.
Requests for recovery shall be made in
writing and are subject to prior
Division of Medical Assistance
approval. Failure to acquire approval
may result in the disallowance of said
costs.
(7) The treatment of gains associated with
the disposal of assets used to provide
necessary services to the Medicaid
program shall be based on this Rule and
the HIM-15.
Oc) Interest cost may be considered an allowable
cost subject to the following conditions, and the
limits included in Paragraph (Tc)n) of this Rule:
(1) Interest for capital indebtedness, where
the interest expense results from the
initial financing of the capital
indebtedness and the ca pital
indebtedness represents all or part of
the current Division of Medical
Assistance approved value of
property. The property shall
the
be
12)
necessary for the provision of adequate
service. as determined by the
Department of Human Resources, to
the clients of the ICF-MR facility. The
financing shall be prudently incurred.
The interest rate shall not be in excess
of the amount a prudent borrower
would pay at the time the loan was
incurred. In determining the
reasonableness of the interest rate, all
associated factors at the time the loan
was incurred shall be considered,
including, but not limited to the
following:
(A) Current market rates of interest in the
economy.
(B) Industry specific rates of interest.
(C) Provider specific financial position.
(3) The loan agreement shall be entered
into between parties not related through
control, ownership, affiliation, or
personal relationship as defined in
HIM-15, unless this provision is waived
in writing by the Division of Medical
Assistance. Such waiver shall be based
on, but not limited to. a demonstration
of need for the indebtedness and cost
savings resulting from the transaction.
The burden of proof shall be on the
provider to provide proper support and
justification for such waiver to the
Division of Medical Assistance. Loans
from a related party must be clearly
identified and reported separately on the
8:9
NORTH CAROLINA REGISTER
August 2, 1993
725
PROPOSED RULES
annual cost report .
(4) Interest expense on working capital
indebtedness is allowable, subject to the
Division of Medical Assistance's
approved level of working capital, and
subject to the standards listed of this
Rule.
(A) Interest on excess working capita] xs
specifically denied.
(B) Working capital shall be established at
the level necessary to support the
facility's operations, after taking into
full consideration the lead/lag impact
of the facility's expenditures and
reimbursements.
(5) Interest expense for capital indebtedness
where the interest expense results from
the refinancing of the capital
indebtedness, and the refinancing has
the prior approval of the Division of
Medical Assistance, shall be allowed in
that amount associated with the
outstanding principal prior to
refinancing. Interest costs may be
allowed in excess of the amount
associated with the outstanding
principal balance prior to refinancing, if
the purpose of the debt is to acquire
assets to be used for care of persons
serN'ed by the facility and all other
applicable requirements of this Rule are
met. Interest expense resulting from
the inclusion of the closing costs, such
as. but not limited to. attorney's fees,
recording costs and points in the
refinancing transaction shall be
considered allowable.
(A) The provider should file all necessary
documents supporting its request for
refinancing prior approval to the
Di\ision of Medical Assistance no
later than 120 days prior to the
proposed refinancing date.
(B) The Division of Medical Assistance
shall render a decision regarding the
prior approval request no later than
30 days prior to the proposed
refinancing date.
(C) Based upon just cause shown, the
Division of Medical Assistance may
waive the time requirements included
in Parts (k)(5)(A) and (B) of this
Rule, but m all cases there shall be
enough time allowed to evaluate the
proposed refinancing.
(6) In all cases, in order for the interest
expense to be allowable it shall be
necessary to satisfy a financial need
related to the adequate provision of
recipient care, as determined by the
Division of Medical Assistance. Loans
which result in excess funds or
investments are not considered
necessary.
("7) Interest expense may not be allowable
when related to loans that failed to
receive prior approval, as required,
from the Division of Medical
Assistance.
(8) In no event shall interest expense be
allowed on a facility's cost that is
deemed to be excessive.
£1) The annual capital cost or lease expense
limitations shall apply:
ill 1° §ii facilities with 21 or more beds
and to facilities consisting of multiple
detached buildings in which at least one
contains nine certified beds. The
facilities covered by this limit shall
have been awarded a Cer tificate of
The
Need before January
1993.
annual capital cost or lease expense
limit shall be the lesser of actual cost or
the sum of Parts (A) and (B) as follows:
(A) The annual depreciation on plant and
fixed equipment that would be
computed on assets equal to thirty
thousand dollars ($30.000) per bed
(capital recovery base) during fiscal
year 1982-83 adjusted for changes in
the following cost indexes:
iil For the period after 1982-83 and
through the period 1991-92 the
capital recovery base shall be
adjusted for changes in the Dodge
Building Cost Index of North
Carolina Cities.
(ii) For the period beginning July L,
1992 the capital recover\' base
shall be adjusted for changes in
the implicit price deflator for
residential structures as provided
by the Office of State Budget and
Management. Depreciation
expense shall be computed using
the straight line method of
depreciation and the useful life
standards established by the
American Hospital Association.
£B} An interest allowance equal to jO
726
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
percent of the capital recovery base
used to compute annual depreciation
on plant and fixed equipment.
(C) This annual capital cost or lease
expense limit does not a pply to leases
in effect prior to August 3^, 1983.
(2) To all facilities that have been awarded
a Certificate of Need on or after
January 1. 1993. the annual capital cost
or lease expense shall be limited to the
lesser of actual cost or the fair and
reasonable depreciation and interest
expense calculated on the capital
recovery base in effect at the time of
certification and enrollment into the
Medicaid program.
(A) Depreciation expense shall be
computed using the straight line
method of depreciation and the useful
life standards established by the
American Hospital Association.
(B) Interest expense is computed using a
10 percent rate of interest.
(C) The capital recovery base is
established as thirty thousand dollars
($30,000) of plant and fixed
equipment assets per bed during the
fiscal year 1982-83 adjusted for the
changes in the cost indexes contained
in Subparagraphs (1)(1)(A), (i) and (ii)
of this Rule.
(D) Recovery of the cost of material
additions to plant and fixed equipment
subsequent to certification and
enrollment in the Medicaid program
shall be subject to review on a case
by case basis, consistent with the
provisions of this Rule.
(E) This capital cost or lease expense
limitation should be considered the
absolute maximum allowable for
Medicaid reimbursement. In
evaluating the reasonableness of a
particular facility's capital cost or
lease expense, regional costs of land
and construction should be
considered. In cases where the
reasonable regional costs are less than
those derived from Subparagraph
(r)(2)(C) of this Rule, then the
regional costs should be used in
determining the a ppropriate capital
cost or lease expense limitations.
(i) Generally, in determining fair and
reasonable facility cost, the
average cost of similar
construction in the same local
area should be used. This test of
reasonableness should be applied
to all components of the facility's
construction cost. including
square footage and per unit costs.
(ii) Absent strong, clear justification
to the contrary, no six bed facility
shall be allowed to recover capital
cost and lease expense related to
square footage in excess of 32(X)
square feet.
(3) Failure to provide supporting evidence
of actual facility cost incurred may
result in disallowance of said cost.
(m) For providers whose annual reimbursement
from the Medicaid program exceeds one million
dollars ($1.000.000.) all contracts with related
parties as defined by HIM-15 in the amount often
thousand dollars ($10.000) or more shall receive
prior approval from the Division of Medical
Assistance.
m
Failure to file said contracts with the
Division of Medical Assistance may
result in disallowance of the related cost
from Medicaid reimbursement.
(2) The contracts should be filed with the
Division of Medical Assistance 90 days
prior to the effective date of said
contracts.
(n) Restricted funds are funds expended by the
facility which include grants, gifts, and income
from endowments, whether cash or otherwise.
which shall be used only for a specific purpose as
designated by the donor or grant instrument.
Restricted funds are to be deducted from the
designated Medicaid Program costs when
determining allowable costs. Unrestricted funds
are funds expended by the provider which include
grants, gifts, and income from endowments, cash
or otherwise, given to a provider without
restriction by the donor as to their use.
Unrestricted funds are to be deducted from the
designated Medicaid program costs when
determining allowable costs.
(o) When multiple facilities or operations are
owned by a single entity with a central office, the
central office records shall be maintained as a
separate set of records with costs and revenues
separately identified and a ppropriately allocated to
individual facilities. Allocation of central office
costs shall be reasonable and conform to the
directives of the Division of Medical Assistance
and generally accepted accounting principles.
8:9
NORTH CAROLINA REGISTER
August 2, 1993
727
PROPOSED RULES
Such costs are allowable only to the extent that the
centra] office is providing services related to client
care and the provider can demonstrate that the
central office costs improved efficiency, economy,
or quality of recipient care. TTie burden of
demonstrating that costs are client related lies with
the provider.
(1) If a provider has business enterprises
other than those reimbursed by
Medicaid, then the revenues, expenses,
statistical and financial records for such
enterprises shall be clearly identifiable
from the records of the operations
reimbursed by Medicaid.
(2) If an audit establishes that records are
not maintained so as to clearly identify
Medicaid information, none of the co-
mingled costs shall be recognized as
Medicaid allowable costs and the
provider's rate shall be adjusted to
reflect the disallowance as of the earlier
of the commencement of the rate period
related to the co-mingled costs, or the
commencement of the co-mingling of
said costs.
(3) After the co-mingled costs have been
satisfactorily allocated and reported to
the Division of Medical Assistance, and
based on good cause shown, the
Division of Medical Assistance may
retroactively adjust the facility's rate.
(4) Central office costs are generally
charged to the Administrative and
General cost center. In some cases.
however, certain personnel costs which
are direct patient care oriented may be
allocated to direct care cost centers if
time records are maintained to
document the performance of direct
patient care services. No home office
overhead may be so allocated. The
basis of this allocation among facilities
participating in the North Carolina
Medicaid program may be:
(A) specific time records of work
performed at each facility, or
(B) client days in each facility to which
the costs apply relative to the total
client days in all the facilities to
which the costs apply.
(p) All criteria and limitations used by the
Division of Medical Assistance to subject
individual provider cost data to tests of
reasonableness shall be made available to a
provider upon written request. In determining
reasonableness of costs, the Division of Medical
Assistance may compare major cost centers or total
costs of similar providers and may request
satisfactory documentation from providers whose
cost does not appear to be reasonable. Similar
providers are those with like levels of client care,
size, and geographic location.
(q) Start-up costs are costs incurred by an ICF-
MR facility while preparing to provide services at
said facility. It includes the cost incurred by
providers to provide services at the level necessary
to obtain certification less any revenue or grants
related to start-up. The North Carolina Medicaid
Program shall reimburse these start-up costs up to
a maximum equal to the facility's rate times its
beds times 120 days.
(1) Effective for all facilities whose
Certificate of Need was granted on or
after January \^ 1993, the start-up cost
reimbursement shall be added to the
facility's per diem rate calculated in
accordance to the related provisions of
this plan. These start-up costs shall be
amortized over a 36 month period and
shall be reported as administrative and
general in the cost report. No advance
of these start-up costs shall be made.
These costs shall not be included in
calculating the facility's total AG/OMP
costs for rate setting purposes in
O)
accordance with this Rule.
Effective for all facilities whose CON
was granted prior to January \^ 1993,
the start-up reimbursement shall be
made in addition to the facility's per
diem rate. No advance of start-up
fiinds shall be made prior to the
submission of the start-up cost report.
An interim payment not to exceed 80
percent of the allowable start-up costs
can be made at the written request of a
provider after a start-up cost report has
been filed. The remaining balance of
appropriately incurred start-up costs
shall be paid after the desk audit of the
start-up cost report has been completed.
Any balance due to the Medicaid
program shall be repaid promptly.
(3) A start-up cost report shall be filed in
accordance to the guidelines established
by the Division of Medical Assistance.
(4*) Allowable start-up costs may include.
but not be limited to:
(A) personal services expenses.
(B) utility expenses.
728
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
(C) property taxes.
(D) insurance expenses,
(E) employee training expenses,
(F) housekeeping expenses,
(G) repair and maintenance expenses,
(H) administrative expenses.
(5) All costs that are properly identifiable
as organization costs, or capitalizable as
construction costs, shall be classified as
such and excluded from start-up costs.
(6) Cost related to increasing bed capacity
in an existing facility shall not be
treated as start-up costs.
(r) Only that portion of management fees that is
directly related to client care and is not otherwise
functionally covered by the current staffing pattern
is allowable in the calculation of a facility's actual,
allowable, and reasonable costs. Management fees
on a ger diem basis shall be limited to seven
percent of the maximum intermediate care rate for
nursing facilities enrolled in the Medicaid
Program. Management fees are charged to the
Administrative and General Cost Center. In some
cases, however, a portion of a management fee
may be allocated to a direct patient care cost
center if time records are maintained to document
the performance of direct patient care services.
The amount so allocated may be equal only to the
salary and fringe benefits of persons who are
performing direct patient care services while
employed by the management company. Records
to support these costs shall be made available to
staff of the Division of Medical Assistance. The
of this allocation among facilities
the North Carolina Medicaid
basis
_ this
participating in
program may be:
ID
12}
specific time records of work
performed at each facility, or
client days in each facility to which the
costs apply relative to the total client
days in all facilities to which the costs
apply.
(s) The following costs are considered non-
allowable facility costs because they are not related
to client care or are specifically disallowed under
the North Carolina State Plan:
bad debts;
01
£3]
(41
advertising, except personnel want ads,
and one line yellow page (indicating
facility address);
charity, courtesy allowances, discounts,
refunds, rebates and other similar items
granted by the provider;
life insurance (except for employee
group plans);
(5}
£6}
ill
im
m
(10)
iLQ
(12)
(13)
(14)
(15)
(16)
iUl
(18)
(19)
prescription drugs and insulin (available
to recipients under the State Medicaid
Drug Program);
vending machine expenses;
state or federal corporate income taxes,
plus any penalties and interest;
telephone, television, or radio for
personal use of client;
retainers, unless itemized services of
equal value have been rendered:
fines or penalties;
ancillary costs that are billable to
Medicare or other third party payors;
property taxes and other expenses
related to real estate deemed by the
Division of Medical Assistance to be in
excess of the reasonable amount needed
for the physical facility;
property taxes, insurance, maintenance
and other expenses related to facility
costs deemed by the Division of
Medical Assistance to be in excess of
the reasonable amount necessary for
quality client care;
costs associated with
lawsuits filed
against the Department of Human
Resources which are not upheld by the
courts;
personal use of company assets
resulting in unreasonable levels of
compensation;
meals provided to employees;
charitable contributions;
costs related to excessive or
unnecessary levels of care;
interest associated with Medicaid
overpayment repayment plans agreed to
by both the provider and the Division
of Medical Assistance;
(20) costs related to frivolous appeals;
(21) costs resulting from provider
negligence;
(22) costs related to any illegal activity;
(23) costs disallowed on the associated tax
return by the Internal Revenue Service
or the North Carolina Department of
Revenue, unless specifically allowable
under this plan;
(24) promotional items designed to promote
the provider's public image;
(25) costs associated with the interests of
provider shareholders and not direct
care related;
(26) costs related to client care incurred in
prior years, unless specific approval
8:9
NORTH CAROLINA REGISTER
August 2, 1993
729
PROPOSED RULES
acquired from the Division of Medical
Assistance;
(27) country club dues,
(t) Providers shall use a competitive bidding
process in order to purchase or lease vehicles.
(1) Providers shall explore cost differentials
between leasing and purchasing of
vehicles and shall choose the least
expensive alternative.
(2) Daily logs detailing the use of vehicles
shall be maintained by the provider.
(u) Purchase of services, major renovations,
capital equipment, and supplies that exceed Five
thousand dollars ($5.000) annually shall be made
through a competitive bidding process or a request
for proposal process. A bid may be obtained for
a maximum of three years. Facilities shall not
purchase in a piece meal fashion to avoid the five
thousand dollars ($5.000) limit. Purchases without
bids shall be based upon sole source justification
supported by documentation of the uniqueness or
the limited availability of services. Failure to
execute this bidding process may result in the costs
of the applicable goods and services being
disallowed for Medicaid reimbursement purposes.
(v) Reasonable costs associated with self-
insurance programs are allowable, as determined
by the Division of Medical Assistance. All
material facts related to said programs shall be
disclosed to the Division of Medical Assistance.
Failure to disclose may result in the disallowance
of said costs.
Authority- G.S. 108A-25(b): 108A-54; 108A-55;
S.L. 1985. c. 479. s. 86; 42 CFR 447, Subpart C.
.0306 PAYMENT ASSURANCE
(a) The State shall pay each provider of ICF-MR
services, who furnishes the services in accordance
with the requirements of the State Plan and the
Participation agreement, the amount determined
under the plan.
(b) In no case shall the payment rate for services
provided under the plan exceed the facility's
customary charges to the general public for such
services.
(c) The payment methods and standards set forth
herein are designed to enlist the participation of
any provider who operates a facility both
economically and efficiently. Participation in the
program shall be limited to providers of service
who accept, as payment in full, the amounts paid
in accordance with the State Plan. This
reimbursement plan is effective consistent with and
on approval of the State Plan for Medical
Assistance.
(d] In all circumstances involving third party
payment. Medicaid is the payor of last resort.
(e) The State may withhold payments to
providers under the following circumstances:
(1) If the State has an expectation that the
provider will not expend the total
prospective rate for reasonable and
allowable patient care costs, the State
may, at its discretion, withhold a
portion of each payment so as to avoid
a large amount due back to the State.
(2) Upon provider termination from the
Medicaid Program the State may
withhold a sum of money from provider
payments that it reasonably expects will
be due when final reimbursement
settlements for all previous periods,
including the period in which the
termination occurred, are completed.
(3) Upon determination of any sum due the
Medicaid Program or upon instruction
from a legally authorized agent of State
or Federal Government, the State may
withhold sums to meet the obligations
identified.
(4) Upon written request of the provider,
and with good cause shown, the
Division of Medical Assistance may
approve a repayment schedule in lieu of
withholding funds.
(5) The State may withhold up to 20
percent per month of a provider's
payment for failure to file a timely cost
report or other relevant information
related to a facility's operation and
requested by the Division of Medial
Assistance. These funds shall be
released to the provider after the cost
report or the related information
requested by the Division of Medical
Assistance is acceptably filed. The
provider shall experience delayed
payment while the check is routed to
the State and split for the amount
withheld.
Authority G.S. W8A-25(b); 108A-54; 108A-55;
S.L. 1985, C.479, s. 86; 42 CFR 447, Subpart C.
.0307 REIMBURSEMENT METHODS
FOR STATE-OPERATED
FACILITIES
(a) A certified State-operated ICF-MR facility is
reimbursed for the reasonable costs that are
730
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
necessary to efficiently meet the needs of its clients
and to comply with federal and state laws and
regulations. Payments shall be suspended if
annual reports are not filed. The Division of
Medical Assistance may extend the deadline for
filing the report if in its view good cause exists for
the delay. The reasonableness and allowability of
costs incurred by state-operated facilities shall be
determined by the Division of Medical Assistance.
(b) A E^ diem rate based on the provider's
estimated annual cost divided by patient days shall
be used to make interim payments. A tentative
settlement shall be issued based on the desk audit
performed on each annual cost report to determine
the amount of Medicaid reasonable cost and the
amount of interim payments received by the
provider.
(c) Any payments in excess of costs shall be
refunded to the Division of Medical Assistance.
Any reasonable costs in excess of payments shall
be paid to the provider. An annual field audit may
be performed by a qualified independent auditor to
determine the final settlement amounts.
Authority G.S. 108A-25(h): 108A-54; 108A-55;
S.L. 1985, c. 479, s. 86; 42 CFR 447, Subpart C.
.0308 RATE APPEALS
(a) The Division of Medical Assistance shall
consider only the following appeals for adjustment
to the rates which would result in an annual rate
increase to the provider from the Medicaid
Program of one thousand dollars ($1,000) or more.
(1) Appeals because of changes in the
information used to calculate a facility's
prospective rate.
(2) Appeals for significant increases or
decreases in a facility's overall base
period operating costs due to, but not
limited to, implementation of new
programs, changes in staff or service,
changes in the characteristics or number
of clients, changes in a financing
agreement, capital renovations,
expansions or replacements which have
been either mandated or approved by
the Division of Medical Assistance and,
except in life-threatening situations.
£3}
approved in advance by the applicable
State agencies.
In order for said changes to be
considered, they shall be consistent
with all of the provisions of this plan.
Effective July \_^ 1994. an appeal shall
not be granted unless the provider can
demonstrate that it is necessary for the
financial stability of the provider and is
needed by the provider in order to
deliver proper levels of service to it
clients, under Medicaid guidelines.
Absent strong convincmg evidence to
the contrary, a provider's ability to
provide services at a cost equal to or
below the approved rate, as reflected on
the most recent annual cost report,
demonstrates financial stability and the
lack of need for a rate increase.
(4) Upon proper notification to the provider
in writing, the Division of Medical
Assistance may instigate a proceeding
to reduce the provider's rates. A rate
reduction proceeding may be initiated
upon the determination of just cause by
the Division of Medical Assistance.
Grounds for just cause may include, but
are not limited to, the following:
£A} The provider has achieved material
over collections of Medicaid funds
derived from the prospective rate
being greater than reasonable
Medicaid costs.
(B) Changes in Federal or State laws or
regulations resulting in material
operational cost savings.
(C) Material changes in client profile
resulting in the need for less costly
services.
(D) The burden of proof shall be on the
Division of Medical Assistance to
prove the need for said rate reduction.
(5) In determining a fair and reasonable
rate under appeal, the Division of
Medical Assistance shall take into
consideration all funds available to the
provider. Providers are expected to
utilize all available funds to provide the
services that their clients need.
(6) Reasonable occupancy factors, as
established by the Division of Medical
Assistance, shall be utilized in
establishing fair and reasonable rates in
the appeal process.
(7) Prospective rates determined under the
rate appeal mechanism may be applied
retroactively to the later of the
beginning of the rate year in which said
appeal was filed, or the date of
certification of the related facility, or
the effective date during the facility's
current rate year of the item(s) that
8:9
NORTH CAROLINA REGISTER
August 2, 1993
731
PROPOSED RULES
caused the need for the change in rates .
(8) The Division of Medical Assistance
shall not pay interest on the final dollar
settlement resulting from the retroactive
impact of any rate appeals.
(b) Notification of appeal:
(1) In order to appeal a rate the facility
shall send to the Division of Medical
Assistance an appeal application in
writing either within 60 days of the
facility receiving the rate computation
or within 60 days of the beginning of
the rate period in question.
(2) The appeal application shall set forth
the basis for the appeal and the issues
of fact. Appropriate documentation
shall accompany the application and the
Division of Medical Assistance may
request in writing such additional
documentation as it deems necessary.
(c) The burden of proof on appeal shall be on
the facility to present clear and convincing
evidence to demonstrate the rate requested in the
appeal is necessary to ensure efficient and
economical operation, and meets the criteria of this
Rule.
(d) There shall be a written notification by the
Division of Medical Assistance of the final
decision on the facility's rate appeal . However, at
no point in the appeal process shall the facility
have a right to an interim report of any
determinations made by any of the parties to the
appeal .
Authority G.S. 108A-25(h); 108A-54; 108A-55:
S.L. 1985. c. 479. s. 86; 42 CFR 447. Subpart C.
.0309 AUDITS
(a) Each facility shall maintain the statistical and
financial records which formed the basis of the
reports required by this Rule and submitted to the
Division of Medical Assistance for five years from
the date on which the reports were submitted or
due, whichever is later, or for such longer periods
as may be required under State or Federal law.
Each cost report shall be verified by the state
agency or its representative for completeness,
accuracy, and reasonableness through a desk audit.
Field audits shall be performed as required. When
a combined cost report is filed under this plan,
only the combined cost report is subject to desk
and field audit, unless the Division of Medical
Assistance determines that the supporting individu-
al facility cost reports need to be audited.
(b) All such records shall be subject to audit for
a period of five years from the later of the date on
which all required reports were filed with the
Division of Medical Assistance or the date on
which such reports were due.
(1) Desk or field audits shall be conducted
by the Division of Medical Assistance,
its designated contract auditors, or
other governmental agencies at a time
and place and in a manner determined
by said governmental agencies.
(2) The audits may be performed on any
financial or statistical records required
to be maintained.
(3) Any findings of a described audit of
this Rule shall constitute grounds for
recoupment at the discretion of the
Division of Medical Assistance, provid-
ed that such audit finding relates to the
allowable costs.
(c) All filed cost reports shall be desk audited
and tentative settlements made in accordance with
the provisions of this plan. This settlement is
issued within 180 days of the date the cost report
was filed or within 272 days of the end of the June
30 fiscal year reflected in the cost report, whichev-
er is later. The state may elect to perform field
audits on any filed cost reports within three years
of the date of filing and issue a final settlement on
a time schedule that conforms to Federal law and
regulation. If the state decides not to field audit a
facility a final reimbursement notice may be issued
based on the desk audited settlement. The state
may reopen and field audit any cost report after
the final settlement notice in order to comply with
Federal law and regulation or to enforce laws and
regulations prohibiting abuse of the Medicaid
Program and particularly the provisions of this
reimbursement plan. These changes to the Payment
for Services Prospective Reimbursement Plan for
ICF-MR Facilities will become effective when the
Health Care Financing Administration. U.S.
Department Health and Human Services, approves
amendment submitted to HCFA by the Director of
the Division of Medical Assistance on or about
July 1. 1993 as ;/MA 93-12. wherein the Director
proposes amendments of the State Plan to amend
Payment for Services - Prospective Reimburse-
ment Plan for ICF-MR Facilities .
Authority G.S. 108A-25(h): 108A-54: 108A-55:
S.L. 1985. c. 479. s. 86: 42 C.F.R. 447. Subpart
C.
732
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
:Je3]e:ic%9)cH<^>{'9i'^^
jyiotice is hereby given in accordance with G.S.
150B-21.2 that the Social Services Commission
intends to adopt rules cited as 10 NCAC 42B
.2401; 42D .1826; and amend rules cited as 10
NCAC 42C .2004, .2302. .2402. .2501. .3601;
49E .0002.
1 he proposed effective date of this action is
December 1, 1993.
1 he public hearing will be conducted at 10:00
a.m. on September 2, 1993 at the Albemarle Bldg. ,
Room 943-2, 325 N. Salisbury St. , Raleigh, N. C
Keason for Proposed Action:
10 NCAC 42B .2401; 42C .2004, .2302, .2402,
.2501, .3601; 42D .1826 - To adopt and amend
rules which were recommended by Domiciliary
Care Rules Review Committee.
10 NCAC 49E .0002 - To bring rules into compli-
ance with current procedures and the approved
Title IV-A State Plan.
i^omment Procedures: Comments may be pre-
sented in writing any time before or at the public
hearing or orally at the hearing. Time limits for
oral remarks may be imposed by the Commission
Chairman. Any person may request copies of
these Rules by calling or writing to the Special
Assistant, Division of Social Services, 325 N.
Salisbury St. , Raleigh, NC 27603, (919) 733-3055.
CHAPTER 42
INDIVIDUAL AND FAMILY
SUPPORT
SUBCHAPTER 42B - LICENSING OF
HOMES FOR DEVELOPMENT ALLY
DISABLED ADULTS
SECTION .2400 - ADMINISTRATIVE
PENALTY DETERMINATION PROCESS
.2401 ADMINISTRATIVE PENALTY
DETERMINATION PROCESS
10 NCAC 42C .3601 shall control for this
Subchapter.
Statutory Authority G.S. 131D-2; 131D-34;
143B-153.
SUBCHAPTER 42C - LICENSING OF
FAMILY CARE HOMES
SECTION .2000 - PERSONNEL
.2004 GENERAL HEALTH
REQUIREMENTS
(a) The administrator must hav e a modioal
e xamination, including n e o e ooary toots shall be
tested for tuberculosis-? disease within 50 90 days
before employment and annually thereafter . Tbe
Form DSS 186 4 is to b e uo e d to r e cord th e results.
Annually thereafter, the admini s trator is to und e r
go th e n e c e ssary t e sts for tub e rculosis and verify
to th e county d e partm e nt of social s ervic e s that h e
There shall be documentation on file in the home
that the administrator is free of tuberculosis ta-a
communicabl e stag e using a r e cord d e signated by
th e Division of Social S e rvic e s disease that poses
a direct threat to the health or safety of others .
(b) Th e sup e rvisor in charg e mu s t have a modi
oal e xamination, including th e n e c e ssary t e sts for
tub e rculosis, within 30 days b e for e or s e ven days
aft e r e mployment. — Th e Form DSS 1 8 6 4 is to b e
us e d to r e cord th e r e sults. Annually th e r e aft e r, th e
sup e rvisor in charg e is to und e rgo th e n e c e ssary
t e sts for tub e rculosis and v e rify to the county
d e partm e nt of social s e rvic e s that h e is fr ee of
tub e rculosis in a communicabl e stag e using a
r e cord d e signat e d by the Division of Social S e rvio
esr
(b) fe) All other staff and live-in non-residents
must und e rgo th e n e c e ssary t e sts shall be tested for
tuberculosis disease within 30 90 days before or
seven days after employment or living in the
home, and annually thereafter. There must shall
be documentation on file in the home that each
person is free of tuberculosis in a communicabl e
stage using a r e cord d e signat e d by the Division of
Social S e rvices disease that poses a direct threat to
the health or safety of others .
(4) — Th e Divi s ion of Facility Services and th e
county department of social s e rvic e s may jointly
r e qu e st at any tim e a m e dical or psychological
e xamination of any staff member or liv e in person.
This may b e don e wh e n in th e ir judgm e nt th e
p e r s on, du e to a physical or m e ntal condition, is
not ad e quat e ly p e rforming hi s r e quired duti es , is
j e opardizing the health of oth e rs living in th e
hom e , or is adv e rs e ly aff e cting the p e rformanc e of
s taff duti e s. Note: Th e n e c e ssary te s ts fortubercu
losis ar e thos e r e commend e d by th e Division of
H e alth Sorvioo s for staff in high risk s e ttings. Th e
local — h e alth — d e partm e nt — may — be — contact e d — te
provid e n e c e ssary' tuberculosis scr ee ning.
8:9
NORTH CAROLINA REGISTER
August 2, 1993
733
PROPOSED RULES
(c) Tests for tuberculosis disease shall comply
with the control measures adopted by the Commis-
sion for Health Services as specified in 15A
NCAC 19A .0205 including subsequent
amendments and editions. Copies of the rule are
available at no charge by contacting the
Department of Environment, Health, and Natural
Resources. Tuberculosis Control Branch. Post
Office Box 27687. Raleigh. North Carolina
27611-7687.
Statutory Authority G.S. 131D-2; 143B-153.
SECTION .2300 - SERVICES
.2302 HEALTH CARE
(a) The administrator is responsible for
providing occasional or incidental medical care,
such as providing therapeutic diets, rotating
positions of residents confined to bed, and
applying heat pads.
(b) The resident or his responsible person is to
be allowed to choose a physician to attend to him.
(c) Immediate arrangements must be made by
the administrator with the resident or his
responsible person for the resident to secure
another physician when he cannot remain under
the care of his own physician. The name, address
and telephone number of the resident's physician
is to be recorded on Form DSS 1 8 65, the Resident
Register.
(d) If a resident is hospitalized, a completed
FL-2 or patient transfer form must be obtained
before the resident can be readmitted to the
facility.
(e) Between annual medical examinations there
may be a need for a physician's care. The Form
DSS 1 8 67 — ef — an — e quival e nt resident's health
services record is to be used by the physician to
report any drugs prescribed and any treatment
given or recommended for minor illnesses.
(f) All contacts (office, home or telephone) with
the resident's physician are to be recorded on
Form DSS 1 8 67 or an equival e nt the resident's
health services record which is to be retained in
the resident's record in the home. The physician's
orders muot shall be included in the resident's
health services record used for th e r e sid e nt, as
follows: including telephone orders initialed by
staff and signed by the physician within 30 days
from the date the order is given.
{\^ Wh e n th e r e sid e nt is e xamin e d in th e
physician's offio e . th e health oorvioos
r e oord i s to bo tak e n and th e physioion
is to add all ncxs e ssary information;
^3) Wh e n — the — physician — e xamin e s — tbe
r e sid e nt in th e hom e , th e physician is to
add all n e c e ssary information into the
health sorvioos r e oord; and
^%) Wh e n a physician's order is giv e n by
t e l e phon e , tbe — administrator — ef
sup e rvisor in charge — must — e nt e r — tbis
into th e h e alth s e rvic e s r e oord, initial it
and hav e th e physician sign it within 30
days from th e dat e th e order is given.
(g) The use of a physical restraint refers to the
application of a mechanical device to a person to
limit movement for therapeutic or protective
reasons, excluding siderails for safety reasons.
Residents shall be physically restrained only as
provided for in the Declaration of Residents'
Rights. G.S. 131D-21 (5), and in accordance with
the following:
(1) The use of physical restraints is allowed
only with a written order from a
licensed physician. If the order is
obtained from a physician other than
the resident's attending physician, the
attending physician shall be notified of
the order within seven days.
(2) In emergency situations the
administrator or supervisor-in-charge
shall make the determination relative to
necessity for the type and duration of
the physical restraint to use until a
physician is contacted. Contact shall be
made within 24 hours.
(3) The physician shall specify In the
restraint order the medical need for the
physical restraint, the type to be used,
the period of time it is to be used, and
the time intervals it is to be checked,
loosened, or removed.
(4) The current order for the physical
restraint shall be on or attached to
Form FL-2 or Form MR-2 (upon
entering the home) or the Report of
Health Services to Residents Form, or
approved equivalent (for subsequent
orders).
(5) The physician ordering the physical
restraint shall update the restraint order
at a minimum of every six months.
(6) If the resident's physician changes after
admission to the home, the physician
who is to attend the resident shall
update and sign the existing restraint
order.
(h) The administrator must have specific written
instructions recorded as to what to do in case of
734
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
sudden illness, accident, or death of a resident.
(i) There must be an adequate supply of first aid
supplies available in the home for immediate use.
(j) The administrator must make arrangements
with the resident, his responsible person, the
county department of social services or other
appropriate party for appropriate health care as
needed to enable the resident to be in the best
possible health condition.
Statutory Authority G.S. 131D-2; 143B-153.
SECTION .2400 - ADMISSION POLICIES
.2402 MEDICAL EXAMINATION
(a) Each resident must shall have a medical
examination including th e n e c e ssary' t e sts and be
tested for tuberculosis-? disease before admission
and annually thereafter. Th e n e o e ssary t e sts for
tuboroulooio — are — thos e — rooom mended — by — the
Division of H e alth S e rvic e s for r e sid e nts in high
risk oettingo. Tests for tuberculosis disease shall
comply with the control measures adopted by the
Commission for Health Services as specified in
15A NCAC 19A .0205 including subsequent
amendments and editions. Copies of the rule are
available at no charge by contacting the
Department of Environment, Health, and Natural
Resources, Tuberculosis Control Branch, Post
Office Box 27687, Raleigh, North Carolina
27611-7687.
(b) The results of the complete examination are
to be entered on Form FL-2 or MR-2. The
examining date recorded on the FL-2 or MR-2
must be no more than 90 days prior to the person's
admission or readmission to the home. The FL-2
or MR-2 must be in the facility before admission
or readmission or accompany the resident upon
admission or readmission and be reviewed by the
administrator or supervisor-in-charge before
admission or readmission. If the information on
the form is not clear or is insufficient, the
administrator or supervisor-in-charge must contact
the physician for clarification in order to determine
if the services of the facility can meet the
individual's needs. The completed Form FL-2 or
MR-2 must be filed in the resident's record in the
home.
(c) The administrator must make arrangements
for any resident, who has been an inpatient of a
psychiatric facility within 12 months before
entering the home and who does not have a current
plan for psychiatric care, to be examined by a
local physician or a physician in a mental health
center within 30 days after admission and to have
a plan for psychiatric follow-up care when
indicated, using Form DSS-1867 or an equivalent
record.
Statutory Authority G.S. 131D-2; 143B-153.
SECTION .2500 - DISCHARGE POLICIES
.2501 OTHER LIVING ARRANGEMENTS
The administrator must discuss with the resident
and his responsible person ef the need to make
other plans for the resident when:
(1) The resident's physician indicates the
resident's condition has improved to the
point he can live outside a domiciliary
facility with family or community support
services;
(2) The resident's physician certifies that the
resident needs professional nursing care
or intermediate care under medical
supervision. In this situation, plans for
other placement must be made as soon as
possible and the county department of
social services will assist the
administrator or resident in making
arrangements for necessary care when
requested;
(3) The resident's condition is such that he is
a danger to himself or poses a direct
threat to the health or safety of others;
(4) The resident makes a written request or
otherwise indicates an earnest desire to
transfer to another licensed home; and
(5) The resident's adjustment to the home is
not satisfactory as determined by the
administrator and the resident or his
responsible person. This is only to be
done after a reasonable period of time
during which the resident was provided
help with adjusting to the home. It is the
responsibility of the administrator to
contact the resident's responsible person
and the county department of social
services and request assistance to help the
resident in adjusting. This request is to
be made at the first indication of an
adjustment problem.
Statutory Authority G.S. 131D-2: 1 438-1 53.
SECTION .3600 - ADMINISTRATIVE
PENALTY DETERMINATION PROCESS
.3601 ADMINISTRATIVE PENALTY
DETERMINATION PROCESS
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735
PROPOSED RULES
(a) The county department of social services
shall identify areas of non-compliance resulting
from an investigation or monitoring visit which
may be violations of residents' rights contained in
G.S. 131D-21 or rules contained in this
Subchapter. If the county department decides to
recommend an administrative penalty as defined in
G.S. 131D-34 , it shall prepare a Negative Action
Propooal an administrative penalty proposal for
submission to the Division of Facility Services^
Group Car e Faoilitiee Branch . The proposal shall
include documentation that the facility
administrator was notified of the county
department's intent to prepare and forward a
negativ e aotion proposal an administrative penalty
proposal to the Division of Facility Services;
offered an opportunity to provide additional
information prior to the preparation of the
proposal; after the proposal is prepared, given a
copy of the contents of the proposal; and then
extended an opportunity to request a local
conference with the county department, allowing
the administrator 10 days to respond prior to
forwarding the proposal. The conference, if
requested, shall include county department
management staff. The administrator may request
a conference and produce information to cause the
county department to change its proposal. The
county may rescind its proposal; or change its
proposal and submit it to the Group Car e Faciliti e s
Branch; Division of Facility Services or submit it
unchanged to the Group Car e Faoiliti e e Branch
Division . The branch shall r e vi e w th e proposal
and forward it to the proposal shall be reviewed by
the Division's Internal Review Committee.
(b) The Internal Review Committee shall be
comprised of three members:
(1) The assistant deputy chief of the
Medical Facilities Licensure Section, or
a person designated by the chief of the
Medical Facilities Licensure Section,
who shall serve as chairman;
(2) Th e h e od of th e Group Car e Faciliti e s
Branch or a A person designated by the
chief of the Lic e nsur e Domiciliary and
Group Care Section; and
(3) A third party selected by the chi e f of
th e Lioenpure S e ction deputy director of
the Division of Facility Services .
(c) The Division of Facility Services shall notify
the administrator by certified mail within 10
working days from the time the proposal is
received by the Internal Review Committee that an
administrative penalty is being considered.
(d) The administrator shall have 10 working
days from receipt of the notification to provide the
Division and the county department of social
services any additional written information relating
to the proposed administrative penalty. Any
information provided shall be considered by the
Internal Review Committee. The administrator
shall have five working days from receipt of the
notification to advise the Division as to whether
the administrator, and authorized representative or
both plan to meet with the Internal Review
Committee.
(e) If the administrator chooses to attend the
meeting as provided in Paragraph (d) of this Rule,
the Division shall notify representatives of the
county department of social services and the
Division of Aging of the administrator's plans to
meet with the Committee or any change in the date
or time of the meeting. The agency that conducted
the investigation shall be responsible for notifying
the complainant, if any. The complainant, if any,
may attend the meeting relating to his or her
complaint.
(f) The Internal Review Committee shall review
all N e gativ e — Aotion — Proposals administrative
penalty proposals , any supporting evidence, and
any additional information provided by the
administrator that may have a bearing on the
proposal such as documentation not available
during the investigation or monitoring visit, action
taken to correct the violation and plans to prevent
the violation from recurring.
(g) There shall be no taking of sworn testimony
nor cross-examination of anyone during the course
of Internal Review Committee meetings.
(h) Time shall be allowed during the Internal
Review Committee meetings for individual
presentations, the total for which shall normally be
one hour for each facility where the violations took
place, but shall not exceed two hours. The
amount of time allowed, up to two hours, shall be
at the discretion of the Internal Review Committee
chair. The order in which presenters shall speak
and length of presentations shall be at the
discretion of the chair.
(i) If it is determined that the administrator has
violated applicable rules or statutes, the Internal
Review Committee shall recommend an
administrative penalty type and amount for each
violation pursuant to G.S. 131D-34. The Division
shall notify the administrator and the county
department of social services by certified mail of
the Committee's decision within five working days
following the Internal Review Committee meeting.
Copies of the letter to the administrator shall be
forwarded by the Division to all parties involved
736
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
with the penalty recommendation. The agency that
conducted the investigation shall be responsible for
notilying the complainant, if any.
(j) If the recommended penalty is classified as
Type B but is not a repeat violation (as defined by
G.S. 131D-34), the administrator may accept the
recommendation and notify the Division by
certified mail within five working days following
receipt of the recommendation. If the penalty is
accepted, the administrator has 60 days from
receipt of the recommendation to pay the penalty.
(k) If the recommended penalty is a Type A
violation; is a Type B violation that has been cited
during the previous 12 months; or is a Type B
violation as provided in Paragraph (i) of this Rule
but is not accepted by the administrator, the
Internal Review Committee shall forward to the
Penalty Review Committee the penalty
recommendation, the rationale for the
recommendation and all information reviewed by
the Internal Review Committee.
(1) The Penalty Review Committee may agree
with or recommend changes to the Internal Review
Committee's recommendations. If the
recommendations are different from those of the
Internal Review Committee, the Division shall
attempt to notify the administrator the day of the
Penalty Review Committee meeting.
(m) Recommendations by the Penalty Review
Committee shall be forwarded to the Chief of
Lic e nsur e the Domiciliary and Group Care Section
who shall have five working days from the date of
the Penalty Review Committee meeting to
determine and impose administrative penalties for
each violation as provided by G.S. 131D-34 and
notify the administrator by certified mail.
(n) The administrator shall have 60 days from
receipt of the notification to pay the assessment or
30 days to appeal the decision as provided by G.S.
131D-34. The Division shall notify the Attorney
General's Office of any outstanding assessments.
Statutory Authority^ G.S. 131D-2; 13W-34:
143B-153.
SUBCHAPTER 42D - LICENSING OF
HOMES FOR THE AGED AND INFIRM
SECTION .1800 - REMAINING POLICIES
AND REGULATIONS
.1826 ADMINISTRATIVE PENALTY
DETERMINATION PROCESS
10 NCAC 42C .3601 shall control for this
Subchapter.
Statutory Authority G.S. 131D-2; 131D-34;
143B-153.
CHAPTER 49 - AID TO FAMILIES WITH
DEPENDENT CHILDREN (AFDC)
SUBCHAPTER 49E - UNEMPLOYED
PARENT PROGRAM
.0002 COVERAGE AND PARTICIPATION
(a) For purposes of the Unemployed Parent
Program, a dependent child is a needy child who
is living with his mother and father who ar e
l e gally marri e d to e ach oth e r, as r e quired by G.S.
10 8 A 2 8 , in a place of residence maintained by
them as their own home; and who is under age 18
or under age 19 and a full-time student in a
secondary school (or in the equivalent level of
vocational or technical training), if, before he
attains age 19, he may reasonably be expected to
complete the program of such secondary school (or
such training).
(b) Assistance shall not be continued for a
temporary period when the principal earner returns
to work.
(c) Assistance shall not be provided for an
assistance unit when the principal wage earner is
unemployed by reason of conduct or circumstances
which result in disqualification for unemployment
compensation under the state's unemployment
compensation law.
Statutory Authority G.S. 108A-28; 143B-153;
Chapter 738, 1987 Session Laws.
TITLE 11 - DEPARTMENT OF
INSURANCE
fSotice is hereby given in accordance with G.S.
150B-2L2 that the N. C. Department of Insurance
intends to adopt rule cited as 11 NCAC 15 .0011.
1 he proposed effective date of this action is
November 1, 1993.
1 he public hearing will be conducted at 2:00
p.m. on August 18, 1993 at the Medical Database
Commission, 112 Cox Avenue, Raleigh, N.C.
27611.
Jxeason for Proposed Action: To establish fees
for the distribution of data as required by statute.
8:9
NORTH CAROLINA REGISTER
August 2, 1993
737
PROPOSED RULES
(comment Procedures: Written comments may be
sent to Jim Hazelrigs, Medical Database Commis-
sion. 112 Cox Avenue, Raleigh. N.C 27605.
Anyone having questions should callJim Hazelrigs
at' (919) 733-7141, or Ellen Sprenkel at (919)
733-4529.
CHAPTER 15 - MEDICAL DATABASE
COMMISSION
.0011 FEES AND CHARGES FOR DATA
(a) The fees for the following reports generated
by the Commission are as follows:
$ 15 State and County' Profiles of
Hospital Inpatient Utilization
$30 ORG Utilization and Charges by
Hospital: A Reference Book
$ 15 A Summary Guide to Hospital
Utilization and Charges
$ 10 Primary Payer Summary Statistics
by Hospital
$20 Patient Origin Report
$ 20 Hospital Inpatient Surgical Proce-
dures Report
$100 Complete set of the six reports
named in this Paragraph
(b) The fees for the following personal computer
(PC) products generated by the Commission are as
follows:
$375 PCIA: Diskette File of ORG
Utilization and Charges by Hospi-
tal
$750 PC IB: Diskette File of DRG
Utilization and Charges by Hospi-
tal by Payer Category
$375 PC2: Diskette File of Zi£ Code
Patient Origin by Hospital
(c) Special data requests may be performed by
commission staff based upon specifications devel-
oped for each project. The charges for special
data requests are as follows:
(I) The full costs charged to the Commis-
sion by others in\'olved in completing
the request:
(A) data processing contractor or the State
Data Center;
(B) any consultant or other contractor
involved in the process.
£2} Twenty'-five dollars ($25.00) per hour
time of a research analyst or other
member of the Commission staff work-
ing on the project.
(3) A charge for the use of the medium on
which the product will be delivered,
paper at ten cents ($0. 10) per page,
diskettes at two dollars ($2.00) each,
and tape at the current cost to the Com-
mission.
(4) A charge for the cost of delivering the
product to the requestor:
(A) Business envelopes at ten cents
($0.10) each. 8" x 1 1" envelopes at
seventy-five cents ($0.75) each, and
boxes for mail of bulk materials at
two dollars ($2.00) each.
(B) U.S. Postal Service actual postage
charges.
(C) Express type mail services may be
used, provided the Commission
obtains the account number of the
requestor and charges the special
delivery to the requestor's account.
The Commission will not include this
as part of the invoice for the product.
(d) Materials may be transmitted via facsimile
for one dollar ($1.(X)) per page for faxing with a
minimum fax charge often dollars ($10.00). This
includes faxing to a long distance number in the
continental United States . Faxing to Alaska.
Hawaii, U.S. territories, and foreign countries
shall not be done by the Commission. The
Commission will not fax more than 30 pages of
data.
(e) The Commission shall charge twenty-five
dollars ($25. (X)) for the standard mailing list and
thirty dollars ($30. (X)) if the mailing list is
formatted to other than standard format at the
request of the purchaser of the list.
(f) The Commission shall charge the proper
sales tax on all materials sold under this Rule.
Statutory Authority G.S. 1 31E-21 1 (k);
131E-212(b)(7).
TITLE 12 - DEPARTMENT
OF JUSTICE
jy/otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Sheriffs ' Educa-
tion and Training Standards Commission intends to
amend rules cited as 12 NCAC lOB . . 0103. . 0105.
. 0201 . . 0204 - . 0205. . 0301 . . 0305. . 0402 - . 0403.
. 0406. . 0408 - . 0409. . 0503. . 0505. . 0602 . . 0606,
.0704. .0901. .0904. .0906. .0909. .1003. .1005.
738
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
.1205, .2104; and repeal rule cited as 12 NCAC
1 OB .0902.
1 he proposed effective date of this action is
January 1, 1994.
1 he public hearing will be conducted at 9:00
a.m. on September 14, 1993 at the FOP Lodge,
Test Farm Road, Waynesville, North Carolina.
Jxeasonfor Proposed Action:
12 NCAC lOB .0103, .0105, .0201, .0204 -
.0205, .0301, .0305, .0402 - .0403, .0406, .0408
- .0409, .0503, .0505, .0602, .0606, .0704, .0901,
.0904, .0906, .0909, .1003, .1005, .1205, .2104
- To make various technical changes for purposes
of updating and clarifying existing rules.
12 NCAC lOB .0902 - The North Carolina
Sheriffs' Education and Training Standards
Commission has adopted, by reference, in Rule
.0901 the CriminalJustice Education and Training
Standards Commission 's rule for physical fitness
instructor. Therefore, this Rule is no longer
needed by the North Carolina Sheriffs ' Education
and Training Standards Commission.
\^omment Procedures: Any person interested in
these Rules may present oral or written comments
relevant to the proposed action at the public rule
making hearing. Written statements can be
submitted beginning August 2, 1993 through
September 14, 1993 and must be directed to the
Sheriffs ' Standards Division. The proposed rules
are available for public inspection and copies may
be obtained at the following address: Dept. of
Justice, Sheriffs' Standards Division, P.O. Box
629, Raleigh, NC 27602-0629
CHAPTER 10 - N.C. SHERIFFS'
EDUCATION AND TRAINING STANDARDS
COMMISSION
SUBCHAPTER lOB - N.C. SHERIFFS'
EDUCATION AND TRAINING STANDARDS
COMMISSION
SECTION .0100 - COMMISSION
ORGANIZATION AND PROCEDURES
.0103 DEFINITIONS
In addition to the definitions set forth in G.S.
17E-2, the following definitions apply throughout
this Chapter, unless the context clearly requires
otherwise:
(1) "Appointment" as it applies to a deputy
sheriff means the date the deputy's oath
of office is administered, and as it applies
to a jailer means either the date the
jailer's oath of office was administered,
if applicable, or the jailer's actual date of
employment as reported on the Report of
Appointment (Form F-4) by the
employing agency, whichever is earlier.
(2) "Convicted" or "Conviction" means and
includes, for purposes of this Chapter,
the entry of:
(a) a plea of guilty;
(b) a verdict of finding of guilt by a jury,
judge, magistrate, or other duly
constituted, established, and recognized
adjudicating body, tribunal, or official,
either civilian or military; or
(c) a plea of no contest, nolo contendere,
or the equivalent.
(3) "Department Head" means the chief
administrator of any criminal justice
agency. Department head includes the
sheriff or a designee formally appointed
in writing by the Department head.
(4) "Director" means the Director of the
Sheriffs' Standards Division of the North
Carolina Department of Justice.
(5) "Division" means the Sheriffs' Standards
Division.
(6) "High School" means a school accredited
as a high school by:
(a) the Department or Board of Education
of the state in which the high school is
located; or
(b) the recognized regional accrediting
body; or
(c) the state university of the state in which
the high school is located.
(7) "Enrolled" means that an individual is
currently actively participating in an
on-going formal presentation of a
commission-accredited basic training
course which has not been concluded on
the day probationary certification expires.
(8) "Essential Job Functions" means those
tasks deemed by the agency head to be
necessary for the proper performance of
a justice officer.
(9) "Lateral Transfer" means certification of
a justice officer when the applicant for
certification has previously held general
or grandfather certification and has b ee n
8:9
NORTH CAROLINA REGISTER
August 2, 1993
739
PROPOSED RULES
separat e d by an agenoy or transferr e d to
anoth e r ag e ncy as a justice officer or a
criminal justice officer as defined in G.S.
17C-2(c), excluding state correctional
officers, state probation/parole officers,
and state youth services officers.
provided the applicant has been separated
from a c e rtifi e d sworn law enforcement
position for no more than one year^. or
has had no break in service .
(10) "Misdemeanor" means those criminal
offenses not classified by the North
Carolina General Statutes, the United
States Code, the common law, or the
courts as felonies. Misdemeanor offenses
are classified by the Commission as
follows:
(a) "Class A Misdemeanor" means an act
committed or omitted in violation of
any common law. duly enacted
ordinance, criminal statute, or criminal
traffic code of this state, or any other
jurisdiction, either civil or military, for
which maximum punishment allowable
for the designated offense under the
laws, statutes, or ordinances of the
jurisdiction in which the offense
occurred or its political subdivisions
includes imprisonment for a term of not
more than six months. Specifically
excluded from this grouping of "class A
misdemeanor" criminal offenses are
motor vehicle or traffic offenses
designated as misdemeanors under
Chapter 20 (Motor Vehicles) of the
General Statutes of North Carolina,
similar laws of other jurisdictions, or
duly enacted ordinances of an
authorized governmental entity with the
exception of the offense of impaired
driving (G.S. 20-138.1) which is
expressly included herein as a class A
misdemeanor, if the defendant was
sentenced under punishment level three
[G.S, 20-179(i)], level four [G.S.
20-1790)], or level five [G.S.
20-179(k)]:
(b) "Class B Misdemeanor" means an act
committed or omitted in violation of
any common law, criminal statute, or
criminal traffic code of this state, or
any other jurisdiction, either civil or
military, for which the maximum
punishment allowable for the designated
offense under the laws and statutes of
the jurisdiction in which the offense
occurred includes imprisonment for a
term of more than six months but not
more than two years. Specifically
excluded from this grouping of "class B
misdemeanor" criminal offenses are
motor vehicles or traffic offenses
designated as being misdemeanors
under Chapter 20 (Motor Vehicles) of
the General Statutes of North Carolina
or similar laws of other jurisdictions
with the following exceptions. Class B
misdemeanor does expressly include,
either first or subsequent offenses of
G.S. 20-138(a) or (b), G.S. 20-166
(duty to stop in event of accident).
This definition further includes a
violation of G.S. 20-138.1 (impaired
driving) if the defendant was sentenced
under punishment level one [G.S.
20- 179(g)] or punishment level two
[G.S. 20-179(11)] for the offense and
shall also include a violation of G.S.
20-28(b) (driving while license
permanently revoked or suspended).
(1 1) "Felony" means any offense designated a
felony by the laws, statutes, or
ordinances of the jurisdiction in which
the offense occurred.
(12) "Dual Certification" means that a justice
officer holds probationary, general, or
grandfather certification as both a deputy
sheriff and a jailer with the same
employing agency.
(13) "Jailer" means any person performing
responsibilities, either on a full-time,
part-time, permanent or temporary basis,
which include but are not limited to the
control, care, and supervision of any
inmates incarcerated in a county jail or
other confinement facility under the
direct supervision and management of the
sheriff.
(14) "Deput)' Sheriff" means any person who
has been duly appointed and sworn by
the sheriff and who is authorized to
exercise the powers of arrest in
accordance with the laws of North
Carolina.
(15) "Commission" as it pertains to criminal
offenses shall mean a finding by the
North Carolina Sheriffs" Education and
Training Standards Commission or an
administrative body, pursuant to the
provisions of Chapter 150B of the North
740
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
Carolina General Statutes, that a person
performed the acts necessary to satisfy
the elements of a specified criminal
offense.
(16) "Sworn Law Enforcement Position"
means a position with a criminal justice
agency of the United States, any state, or
a political subdivision of any state which,
by law, has general power of arrest held
by a person who has successfully
completed the North Carolina Basic Law
Enforcement Training Course.
Statutory Authority G.S. 17E-7.
.0105 ADMINISTRATIVE HEARING
PROCEDURES
(a) Administrative hearings in contested cases
conducted by the Commission or an administrative
law judge (as authorized in G.S. 150B-40) should
shall be governed by:
(1) procedures set out in Article 3 A of
G.S. Chapter 150B;
(2) insofar as relevant, the Rules of Civil
Procedure as contained in G.S. lA-1;
(3) insofar as relevant, the General Rules
of Practice for the Superior and District
Courts as authorized by G.S. 7A-34
and found in the Rules Volume of the
North Carolina General Statutes.
Tho Rul e s of Civil Proc e dur e and th e G e n e ral
Rul e s of Practic e for th e Sup e rior and Di s trict
Courto (as d e scrib e d in this Rul e ) ar e h e r e by
adopt e d by r e f e r e nc e for cont e st e d oaoeo for which
the Commission has authority to adopt rul e s und e r
G.S. — 150B 3 8 (h). — Such adoptions by r e f e r e nc e
shall automatically includ e any lat e r am e ndm e nts
and e dition s of th e adopt e d matt e r as authoriz e d by
G.S. 150B H(o).
(b) The rules establishing procedures for
contested cases adopted by the Office of
Administrative Hearings as contained in Title 26,
Chapter 3 of the North Carolina Administrative
Code are hereby incorporated by reference and
shall automatically include any later amendments
and editions of the referenced materials as
provided by G.S. 150B-21.6.
(c) Provided, however, that if the case is
conducted under G.S. 150B-40(b), the presiding
officer shall have the powers and duties given to
the Chief Administrative Law Judge or the
presiding Administrative Law Judge in Title 26,
Chapter 3 of the North Carolina Administrative
Code.
(d) An a pplicant for certification or a certified
officer shall have 30 days from the date of receipt
of a notice of proposed action by the Commission
to request an administrative hearing.
Statutory Authority G.S. 150B-20; 150B-21.6;
150B-38(h); 150B-40.
SECTION .0200 - ENFORCEMENT RULES
.0201 INVESTIGATION OF VIOLATION
OF RULES
(a) If any criminal justice agency, school,
authorized representative acting on behalf of
either, or individual is reported to be or suspected
of being in violation of any of these Rules, the
Commission may take action to correct the
violation and to ensure that similar violations do
not occur.
(b) Before taking action against an agency,
school, or individual for a violation, the Division
shall investigate the alleged violation and, when
required by the Director, shall present a report of
its findings to the Probable Cause Committee of
the Commission .
(c) The Commission Probable Cause Committee
may convene prior to each regular meeting of the
Commission to consider these investigative reports
and make a determination as to whether or not
probable cause exists that the Commission's rules
have been violated; or may delegate authority to
the Director for further action.
(d) The Commission Probable Cause Committee
may:
(1) direct the Division to conduct a further
investigation of the alleged violation;
(2) request the Attorney General to
authorize an investigation of the
violation by the State Bureau of
Investigation;
(3) direct the Division to conduct an
administrative hearing in the matter; or
(4) impos e determine the appropriate
sanctions against the violator pursuant
to this S e ction the Commission's Rules.
Statutory Authority G.S. 17E-4; 17E-7.
.0204 SUSPENSION: REVOCATION: OR
DENIAL OF CERTIFICATION
(a) The Commission shall revoke or deny the
certification of a justice officer when the
Commission finds that the applicant for
certification or the certified officer has committed
or been convicted of:
(1) a felony unless pardoned by the
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741
PROPOSED RULES
Governor; or
(2) a crime for which the authorized
punishment could have been
imprisonment for more than two years.
(b) The Commission shall revoke, deny, or
suspend the certification of a justice officer when
the Commission finds that the applicant for
certification or the certified officer:
(1) has not enrolled in and satisfactorily
completed the required basic training
course in its entirety within a time
period specified by the Commission; or
(2) fails to meet or maintain any of the
minimum employment or certification
standards required by 12 NCAC lOB
.0300; or
(3) fails to satisfactorily complete the
minimum in-service training
requirements as presented in 12 NCAC
lOB .2000 and .2100; or
(4) has refused to submit to the drug screen
as required in 12 NCAC lOB .0301(6)
or .0406(b)(4) or in connection with an
application for or certification as a
justice officer or a criminal justice
officer as defined in 12 NCAC 9 A
.0103(6); or
(5) has produced a positive result on any
drug screen reported to the Commission
as specified in 12 NCAC lOB .0410 or
reported to any commission, agency, or
board established to certify, pursuant to
said commission, agency, or boards'
standards, a person as a justice officer
or a criminal justice officer as defined
in 12 NCAC 9A .0103(6), unless the
positive result is explained to the
Commission's satisfaction.
(c) The Commission may revoke, deny, or
suspend the certification of a justice officer when
the Commission finds that the applicant for
certification or certified justice officer:
(1) has knowingly made a material
misrepresentation of any information
required for certification or
accreditation from the Commission or
the North Carolina Criminal Justice
Education and Training Standards
Commission; or
(2) has knowingly and designedly by any
means of false pretense, deception,
defraudation, misrepresentation or
cheating whatsoever, obtained or
attempted to obtain credit, training or
certification from the Commission or
the North Carolina Criminal Justice
Education and Training Standards
Commission; or
(3) has aided another in obtaining or
attempting to obtain credit, training, or
certification from the Commission or
the North Carolina Criminal Justice
Education and Training Standards
Commission by means of deceit, fraud
or misrepresentation. This Rule shall
also apply to obtaining or attempting to
obtain in-service firearms
requalification as required by 12 NCAC
lOB .2000 and .2100. i or
(4) has been removed from office by
decree of the Superior Court in
accordance with the provisions of G.S.
128-16 or has been removed from
office by sentence of the court m
accord with the provisions of G.S.
14-230.
(d) The Commission may revoke, suspend or
deny the certification of a justice officer when the
Commission finds that the applicant for
certification or the certified officer has committed
or been convicted of:
(1) a crime or unlawful act defined in 12
NCAC lOB .0103(10)(b) as a Class B
misdemeanor and which occurred after
the date of initial certification; or
(2) a crime or unlawful act defined in 12
NCAC lOB .0103(10)(b) as a Class B
misdemeanor within the five-year
period prior to the date of appointment;
or
(3) four or more crimes or unlawful acts
defined in 12 NCAC lOB .0103(10)(b)
as Class B misdemeanors regardless of
the date of commission or conviction;
or
(4) four or more crimes or unlawful acts
defined in 12 NCAC lOB .0103(10)(a)
as a Class A misdemeanor, each of
which occurred after the date of initial
certification; or
(5) four or more crimes or unlawful acts
defined in 12 NCAC lOB .0103(10)(a)
as a Class A misdemeanor except the
applicant may be certified if the last
conviction or commission occurred
more than two years prior to the date of
appointmentT ^ or
(6) any combination of four or more crimes
or unlawful acts defined in VI NCAC
lOB .0103(10)(a) as a Class A
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PROPOSED RULES
misdemeanor or defined in 12 NCAC
lOB .0103(10)(b) as a Class B
misdemeanor regardless of the date of
commission or conviction.
(e) Without limiting the application of Chapter
17E of the General Statutes of North Carolina, a
person who has had his certification suspended or
revoked may not exercise the authority or perform
the duties of a justice officer during the period of
suspension or revocation.
(f) Without limiting the application of Chapter
17E of the General Statutes of North Carolina, a
person who has been denied certification may not
be employed or appointed as a justice officer or
exercise the authority or perform the duties of a
justice officer.
Statutory Authority G.S. 17E-7.
.0205 PERIOD OF SUSPENSION:
REVOCATION: OR DENIAL
When the Commission suspends, revokes, or
denies the certification of a justice officer, the
period of sanction shall be:
(1) permanent where the cause of sanction is:
(a) commission or conviction of a felony;
or
(b) commission or conviction of a crime
for which authorized punishment
included imprisonment for more than
two years; or
(c) the second revocation, suspension, or
denial of an officer's certification for
any of the causes requiring a five-year
period of revocation, suspension, or
denial as set out in Subparagraph (2) of
this Rule.
(2) not less than five years where the cause
of sanction is:
(a) commission or conviction of a crim e
oth e r than thos e liot e d in Subparagraph
(1) of this Rul e offenses as specified in
n NCAC 108 ■0204(d)(4) ; or
(b) material misrepresentation of any
information required for certification or
accreditation from the Commission or
the North Carolina Criminal Justice
Education and Training Standards
Commission; or
(c) knowingly and designedly by any
means of false pretense, deception,
defraudation, misrepresentation or
cheating whatsoever, obtained or
attempted to obtain credit, training or
certification from the Commission or
the North Carolina Criminal Justice
Education and Training Standards
Commission; or
(d) aiding another in obtaining or
attempting to obtain credit, training, or
certification from the Commission or
the North Carolina Criminal Justice
Education and Training Standards
Commission by means of deceit, fraud
or misrepresentation. This Rule shall
also apply to obtaining or attempting to
obtain in-service firearms
requalification as required by 12 NCAC
lOB .2000 and .2100; or
(e) failure to make either of the
notifications as required by 12 NCAC
lOB .0301(a)(7); or
(f) removal from office under the
provisions of G.S. 128-16 or the
provisions of G.S. 14-230 ; or
(g) a positive result on a drug screen, or a
refusal to submit to drug testing both
pursuant to 12 NCAC lOB .0301 and
12 NCAC lOB .0406, or in connection
with an application for certification as
a criminal justice officer as defined in
12 NCAC 9A .0103(6).
(h) the Commission may either reduce or
suspend the periods of sanction under
this Subparagraph or substitute a period
of probation in lieu of revocation,
suspension or denial following an
administrative hearing. This authority
to reduce or suspend the period of
sanction may be utilized by the
Commission when extenuating
circumstances brought out at the
administrative hearing warrant such a
reduction or suspension, in the
discretion of the Commission.
(3) for an indefinite period, but continuing so
long as the stated deficiency, infraction,
or impairment continues to exists, where
the cause of sanction is:
(a) failure to meet or satisfy relevant basic
training requirements; or
(b) failure to meet or maintain the
minimum standards of employment or
certification; or
(c) failure to meet or satisfy the in-service
training requirements as prescribed in
12 NCAC lOB .2100Tior
(d) commission or conviction of offenses as
specified in 12 NCAC lOB .0204(d)(1),
(2), (3). (5). and (6).
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PROPOSED RULES
Statutory Authority G.S. 17E-4: 17E-7.
SECTION .0300 - MINIMUM STANDARDS
FOR EMPLOITVIENT AND
CERTIFICATION AS A JUSTICE OFFICER
.0301 MINIMUM STANDARDS FOR
JUSTICE OFFICERS
(a) Every Justice Officer employed or certified
as a Deputy Sheriff or Jailer in North Carolina
shall:
(1) be a citizen of the United States;
(2) be at least 21 years of age;
(3) be a high school graduate, or the
equivalent (GEO);
(4) have been fingerprinted by the
employing agency;
(5) have had a medical examination by a
licensed physician;
(6) have produced a negative result on a
drug screen administered according to
the following specifications;
(A) the drug screen shall be a urine test
consisting of an initial screening test
using an immunoassay method and a
confirmatory test on an initial positive
result using a gas
chromatography/mass spectrometry
(GC/MS) or other reliable initial and
confirmatory tests as may, from time
to time, be authorized or mandated by
the Department of Health and Human
Services for Federal Workplace Drug
Testing Programs; and
(B) a chain of custody shall be maintained
on the specimen from collection to the
eventual discarding of the specimen;
and
(C) the drugs whose use shall be tested
for shall include at least cannabis,
cocaine, phencyclidine (PCP), opiates
and amphetamines or their
metabolites; and
(D) the test threshold values established
by the Department of Health and
Human Services for Federal
Workplace Drug Testing Programs
are hereby incorporated by reference,
and shall automatically include any
later amendments and editions of the
referenced materials. Copies of this
information may be obtained from the
National Institute on Drug Abuse,
5600 Fisher Lane, Rockville,
Maryland 20857 at no cost at the time
of adoption of this Rule; and
(E) the test conducted shall be not more
than 60 days old, calculated from the
time when the laboratory reports the
results to the date of employment; and
(F) the laboratory conducting the test
must be certified for federal
workplace drug testing programs, and
must adhere to applicable federal
rules, regulations and guidelines
pertaining to the handling, testing,
storage and preservation of samples,
except that individual agencies may
specify other drugs to be tested for in
addition to those drugs set out in Part
(C) of this Rule;
(G) every agency head shall be
responsible for making adequate
arrangements for the services of a
medical review officer (MRO) for the
purpose of review of drug tests
reported by the laboratory and such
officer shall be a licensed physician.
(7) immediately notify the Standards
Division and the appointing department
head in writing of all criminal offenses
with which the officer is chargedv
pl e ads no contest to, pl e ads guilty to or
is found guilty of ^ and shall also give
notification, in writing, to the Standards
Division and the appointing department
head following the adjudication of these
criminal charges . This shall include all
criminal offenses except minor traffic
offenses and shall specifically include
any offense of Driving Under The
Influence (DUI) or Driving While
Impaired (DWI). A minor traffic
offense is defined, for purposes of this
Subparagraph, as an offense where the
maximum punishment allowable is 60
days or less. Other offenses under
Chapter 20 (Motor Vehicles) of the
General Statutes of North Carolina or
similar laws of other jurisdictions which
shall be reported to the Division
expressly include G.S. 20-139 (persons
under the influence of drugs), G.S.
20-28(b) (driving while license revoked
or permanently suspended) and G.S.
20-166 (duty to stop in event of
accident). TTie initial notification
required must specify the nature of the
offense, the date of offense, and the
arresting agency. The notifications of
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PROPOSED RULES
adjudication required must specify the
nature of the offense, the court in
which the case was handled and the
date of disposition^ and must include a
certified copy of the final disposition
from the Clerk of Court in the county
of adjudication . The notifications of
adjudication must be received by the
Standards Division within 30 days of
the date the case was disposed of in
court. Officers required to notify the
Standards Division under this
Subparagraph shall also make the same
notification to their employing or
appointing e x e cutiv e offic e r department
head within 20 days of the date the case
was disposed of in court. The
e x e cutiv e — offic e r department head,
provided he has knowledge of the
officer's charge(s), shall also notify the
Division within 30 days of the date the
case was disposed of in court. Receipt
by the Standards Division of a single
notification, of the initial offenses
charged and of adjudication of those
offenses, from either the officer or the
e x e cutiv e offic e r department head , is
sufficient notice for compliance with
this Subparagraph;
(8) be of good moral character;
(9) have a thorough background
investigation conducted by the
employing agency, to include a
personal interview prior to
employment;
(10) not have committed or been convicted
of a crime or crimes as specified in 12
NCAC lOB .0307.
(b) The requirements of this Rule shall apply to
all applications for certification and shall also be
applicable at all times during which the justice
officer is certified by the Commission.
Statutory Authority G.S. ]7E-7.
.0305 BACKGROUND INVESTIGATION
(a) Prior to the background investigation
conducted by the employing agency to determine
the applicant's suitability to perform essential job
functions, the applicant shall complete the
Commission's Personal History Statement (F-3) to
provide a basis for the investigation. The Personal
History Statement (F-3) submitted to the Division
shall be completed no more than 120 days prior to
the applicant's date of appointment.
(b) If the Personal History Statement (F-3) was
completed more than 120 days prior to the
applicant's date of appointment the Personal
History Statement (F-3) shall be updated by the
applicant who shall initial and date all changes or
a new Personal History Statement (F-3) must be
completed.
(c) The employing agency shall ensure the
proper dates, signatures, and notarizations are
affixed to the Personal History Statement (F-3)j
and shall also certify that the results of the
background investigation are consistent with the
information provided by the applicant on the
Personal History Statement (F-3), and if not,
provide the applicant the o pportunity to update the
F-3 prior to submission to the Division.
(d) The employing agency, prior to
employment, shall examine the applicant's
character traits and habits relevant to his/her
performance as a justice officer and shall
determine whether the applicant is of good moral
character. The investigator shall summarize the
results of the investigation on a
commission-approved form which shall be signed
and dated by the investigator.
(e) Each applicant shall provide to the
employing agency a certified copy of a check of
the applicant's criminal history record from the
Clerk of Court in each county where the applicant
has resided within the preceding six months. The
employing agency shall perform a criminal history
records check of the agency's own files for each
applicant. A certified copy of the results of all
required criminal history records checks shall be
forwarded with the applicant's Report of
Appointment form (F-4) to the Division.
Additionally, a photocopy of the results of all
required criminal history records shall be retained
by the agency in the applicant's personnel file.
(f) The employing agency shall also forward to
the Division certified copies of any criminal
charge(s) and disposition(s) known to the agency
or listed on the applicant's Personal History
Statement (F-3) or both. This documentation shall
be included with all other documentation required
in 12 NCAC lOB .0408.
Statutory Authority G.S. 17E-7.
SECTION .0400 - CERTIFICATION OF
JUSTICE OFFICERS
.0402 PROBATIONARY CERTIFICATION
All justice officers, except those transferred or
reinstated pursuant to Rule .0406 shall serve a
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745
PROPOSED RULES
probationary certification period of one year^
provided that the one year probationary period has
not been extended for cause pursuant to \2 NCAC
lOB .0303(c); .0503(a); or .0602(a) . For
certification as a deputy sheriff the probationary
period begins on the date the officer took the Oath
of Office. For certification as a jailer, the
probationary period begins on the date the officer
was appointed as a jailer.
Statutory Authority G.S. 17E-4; 17E-7.
.0403 PROBATIONARY CERTIFICATION
REQUIREMENT
(a) For certification as a deputy sheriff or a
jailer , a Report of Appointment Deputy
Sherif f/Jailer (F-4) must be submitted to the
Division. For o e rtifioation as a jail e r, a R e port of
Appointm e nt Jail e r (F 4 A) muot b e s ubmitt e d to
the Divioion. — For o e rtifioation as both a d e puty
sheriff and a jail e r, both forms (F 4 and F 4 A)
must b e submitt e d to th e Division. Report of
Appointment forms must be submitted to the
Division by the sheriffs department no later than
ten days after the deputy sheriff has taken the Oath
of Office or the jailer has been appointed. The
Division shall forward the justice officer's
certification to the Department.
(b) No justice officer probationary certification
will be issued by the Division prior to the
applicant meeting the conditions set forth in this
Paragraph . As an additional requirement for
probationary certification, the applicant shall meet
the following requirements:
(1) If the applicant for probationary
certification is authorized to carry a
firearm pursuant to the provisions of 12
NCAC IQB .2104. the employing
agency shall submit evidence of
satisfactory completion of the
employing agency's in-service firearms
training and requalification program
pursuant to \2 NCAC IQB .2000 and
.2100; or
(2) If the applicant for probationary
certification is not authorized to carry a
firearm pursuant to the provisions of 12
NCAC lOB .2104, the employing
agency shall notify the Division, in
writing, that the applicant is not
authorized to carry a firearm .
Statutory Authority G.S. 17E-4; 17E-7.
.0406 LATERAL TRANSFER/
REINSTATEMENTS
(a) An officer with — general — or grandfather
o e rtifioation who: meeting the requirements of 12
NCAC lOB .0103(9) may laterally transfer to an
agency and be certified upon compliance with this
Rule.
fi-) i s ourrently oortifi e d; or
(3^ has boon s e parat e d but has not boon out
of s ervioo for mor e than one y e ar or
who has had no br e ak in o e rvio e . may
lat e rally tran s f e r to an ag e noy and b e
certifi e d — upon — oompliano e — with — this
Rttie.
(b) The employing agency shall verify the
applicant's certification status with the Division
prior to submission of the application for
certification as a justice officer.
(c) In order for an officer to be certified
pursuant to this Rule, the employing agency shall
submit to the Division, along with the Report of
Appointment (F-4), the following documents:
(1) fingerprint cards and criminal history
records checks as specified in 12
NCAC lOB .0303;
(2) the applicant's Medical History
Statement (F-1) and Medical
Examination Report (F-2) as specified
in 12 NCAC lOB .0304;
(3) evidence of a negative result on a drug
screen administered according to the
specifications as outlined in 12 NCAC
lOB .0301(6);
(4) a copy of the Oath of Office for
applicants requesting certification as a
deputy sheriff;
(5) evidence of satisfactory completion of
the employing agency's in-service
firearms training and requalification
program pursuant to 12 NCAC lOB
.2000 and .2100;
(6) documentary evidence of high school,
college or university graduation to the
employing agency. Documentary
evidence consists of diplomas from
recognized public schools or approved
private schools, colleges or universities
which meet approval guidelines of the
North Carolina Department of Public
Instruction or a comparable out of state
agency; or documentary evidence of the
attainment of satisfactory scores on any
military high school equivalency
examination will be acceptable as
verified by a true copy of the veteran's
DD214.
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PROPOSED RULES
(d) An officer whose certification has been
suspended pursuant to 12 NCAC lOB .0204(b)(1)
may have that certification reinstated provided
that:
(1) the period of suspension has been one
year or less; and
(2) the officer has successfully completed
the basic training requirements as
prescribed in 12 NCAC lOB .0500 or
.0600.
(e) Requirements of Paragraph (c) of this Rule
are waived for officers whose certifications are
reinstated pursuant to Paragraph (d) of this Rule.
(f) All information maintained pursuant to the
requirements of this Rule shall be subject to all
state and federal laws governing confidentiality.
Statutory Authority G.S. 17E-4; 17E-7.
.0408 VERIFICATION OF RECORDS TO
DIVISION
(a) Prior to the probationary certification of each
justice officer, for the purpose of verifying
compliance with these Rules, the employing
agency shall submit to the Division, along with the
Report of Appointment (F-4), copies of the
following documents:
(1) verification of the applicant's
compliance with the educational
requirement pursuant to 12 NCAC lOB
.0302(a);
(2) certified copy of the applicant's Oath of
Office, if applying for certification as a
deputy sheriff;
(3) the applicant's Medical History State-
ment (F-1);
(4) the applicant's Medical Examination
Report (F-2 and F-2A);
(5) the applicant's notarized Personal His-
tory Statement (F-3);
(6) a summary of the applicant's back-
ground investigation;
(7) documentation of negative results on a
drug screen pursuant to 12 NCAC lOB
.0301(6); afid
(8) certified copies of criminal charges and
dispositions as required in 12 NCAC
lOB .0305(e) and (fK ; and
(9) verification of the applicant's compli-
ance with the probationary certification
requirements pursuant to 12 NCAC lOB
.0403(b).
(b) Compliance with this Rule is waived^ with
the exception of the requirements of \2 NCAC
lOB .0408(a)(9). for officers applying for dual
certification as defined in 12 NCAC lOB .0103(12)
provided that:
(1) the officer holds a valid certification as
either a deputy sheriff or jailer with the
employing agency requesting dual
certification; and
(2) the officer has not had a break in ser-
vice since initial certification with the
employing agency requesting dual
certification.
(c) All information maintained pursuant to the
requirements of this Rule shall be subject to all
state and federal laws governing confidentiality.
Statutory Authority G.S. 17E-4; 17E-7.
.0409 EMPLO'VTNG AGENCY RETENTION
OF CERTIFICATION RECORDS
(a) Each employing agency shall place in the
appropriate justice officer's personnel file the
official notification of either probationary or
general certification. Such files shall be available
for examination at any reasonable time by repre-
sentatives of the Commission for the purpose of
verifying compliance with these Rules. Each
personnel file shall also contain:
(1) a copy of the applicant's Report of
Appointment (F-4);
(2) verification of the applicant's compli-
ance with the educational requirement
pursuant to 12 NCAC lOB .0302(a);
(3) a certified copy of the applicant's Oath
of Office, if applying for certification
as a deputy sheriff;
(4) the results of the applicant's fingerprint
records check and the criminal history
records check;
(5) the applicant's Medical History State-
ment (F-1);
(6) the applicant's Medical Examination
Report (F-2 and F-2 A);
(7) the applicant's Personal History State-
ment (F-3);
(8) a summary of the applicant's back-
ground investigation;
(9) a copy of a commission-approved Fire-
arms Requalification Record Form;
(10) documentation of negative results on
drug screen pursuant to 12 NCAC lOB
.0301(a)(6>. ; and
(11) verification of the applicant's compli-
ance with the probationary certification
requirements pursuant to 12 NCAC lOB
.0403(b).
(b) Compliance with this Rule is waived^ with
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747
PROPOSED RULES
the exception of the requirements of J_2 NCAC
lOB .0409(1 1). for officers applying for dual
certification as defined in 12 NCAC lOB .0103(12)
provided that:
(1) the officer holds a valid certification as
either a deputy sheriff or jailer with the
employing agency requesting dual
certification; and
(2) the officer has not had a break in
service since initial certification with
the employing agency requesting dual
certification.
(c) All information maintained pursuant to the
requirements of this Rule shall be subject to all
state and federal laws governing confidentiality.
negligence on the part of the applicant or
employing agency, in which case the Director may
accept a commission-accredited basic training
program which is over one year old. Such
extension of the one year period shall not exceed
30 days from the expiration date of a
commission-accredited basic training program .
Statutory Authority G.S. 17E-4; 17E-7.
«
Statutory Authorin,' G.S. 17E-4.
SECTION .0500 - MINIMUM STANDARDS
OF TRAINING FOR DEPUTi' SHERIFFS
.0503 TIME REQ/ COMPLETION/BASIC
LAW ENFORCEMENT TRAINING
COURSE
(a) Each deputy sheriff holding temporary or
probationary certification shall satisfactorily
complete a commission-accredited basic training
course. The deputy shall complete such course
within one year from the date of his/her Oath of
Office. Any deputy sheriff who does not comply
with this Rule or other training provisions of this
Chapter shall not be authorized to exercise the
powers of a deputy sheriff and shall not be
authorized to exercise the power of arrest. If.
however, an officer has enrolled in a
commission-accredited basic law enforcement
training program that concludes later than the end
of the officer's probationary' period, the
Commission may extend, for good cause shown,
the probationary period for a period not to exceed
12 months.
(b) Persons having completed a
commission-accredited basic law enforcement
training program and not having been duly
appointed as in a sworn d e puty — sh e riff law
enforcement position as defined in 12 NCAC lOB
.0103(16) within one year of completion of the
basic law enforcement training course shall
complete a subsequent commission-accredited basic
recruit training program in its entirety and
successfully pass the State Comprehensive
Examination within the 12 month probationary
period as prescribed in 12 NCAC lOB .0402^
unless the Director determines that a delay in
applying for certification \>.as due to simple
748
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August 2, 1993
PROPOSED RULES
^
)
.0505 EVALUATION FOR TRAINING WAIVER
(a) The Division staff shall evaluate each deputy's training and experience to determine if equivalent training
has been satisfactorily completed as specified in 12 NCAC lOB .0504(a). Applicants for certification with
prior law enforcement experience shall have been employed in a sworn law enforcement position in order to
be considered for training evaluation under this Rule. The following rules shall be used by Division staff in
evaluating a deputy's training and experience to determine eligibility for a waiver of training.
(4^ P e rsons who soparat o d from a sworn law e nforc e m e nt position during their probationary p e riod
aft e r having compl e t e d a commission accr e dit e d Basic Law Enforc e m e nt Training Cours e and who
hav e b ee n s e parat e d from a sworn law e nforcem e nt pKjsition for more than on e y e ar shall compl e t e
a subs e qu e nt commission aoor e dit o d Ba s ic Law Enforcement Training Cour se in its e ntirety and
suooossfully pass th e Stat e Compr e h e nsiv e Examination within th e 12 month probationary' p e riod
as pr e scrib e d in 12 NCAC lOB .0503(a).
(1) (3)Persons who separated from a sworn law enforcement position during their probationary period
after having completed a commission-accredited Basic Law Enforcement Training Course and who
have been separated from a sworn law enforcement position for one year or less shall serve the
remainder of the initial probationary period in accordance with G.S. 17E-7(b), but need not
complete an additional training program.
(2) f3^Persons who separated from a sworn law enforcement position during their probationary period
without having completed Basic Law Enforcement Training, or whose certification was suspended
pursuant to 12 NCAC lOB .0204(b)(1), and who have remained separated or suspended for over
one year shall complete a commission-accredited Basic Law Enforcement Training Course in its
entirety and successfully pass the State Comprehensive Examination, and shall be allowed a 12
month probationary period as prescribed in 12 NCAC lOB .0503(a).
(3) f4)Out-of-state transferees shall be evaluated to determine the amount and quality of their training and
experience. Out-of-state transferees:
(A) shall have a minimum of two years full-time sworn law enforcement experience;
(B) shall not have a break in service exceeding two years; and
(C) shall have successfully completed the Basic Law Enforcement Training Course accredited by the
state from which he/she is transferring. Out-of-state transferees meeting these requirements shall
successfully complete a commission-accredited Basic Law Enforcement Training Course which
includes the following topics of North Carolina law and procedure and successfully pass the State
Comprehensive Examination in its entirety within the 12 month probationary period as prescribed
in 12 NCAC lOB .0503(a).
(i) Laws of Arrest, Search and Seizure 16 hours
(ii) Elements of Criminal Law 24 hours
(iii) Juvenile Laws and Procedures 8 hours
(iv) Controlled Substances 6 hours
(v) ABC Laws and Procedures 4 hours
(vi) Motor Vehicle Laws 20 hours
(vii) Civil Process 24 hours
(viii) Supplemental Custody Procedures 8 hours
(ix) Firearms Qualification (Handgun and Shotgun Courses)
)
TOTAL HOURS 1 10 hours
(4) ^Persons previously holding Grandfather law enforcement certification in accordance with G.S.
17C-10(a) or G.S. 17E-7(a) who have been separated from a sworn law enforcement position for
more than one year and who have not previously completed a minimum Basic Law Enforcement
Training Course accredited by the North Carolina Criminal Justice Education and Training
Standards Commission or the North Carolina Sheriffs' Education and Training Standards
Commission shall be required to complete a commission-accredited Basic Law Enforcement
Training Course in its entirety and successfully pass the State Comprehensive Examination within
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a).
(5) (€)Persons who have completed a minimum 160-hour Basic Law Enforcement Training Course
accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines
administered beginning on July 1, 1973 and continuing through September 30, 1978 and who have
8:9 NORTH CAROLINA REGISTER August 2, 1993 749
PROPOSED RULES
been separated from a sworn law enforcement position for more than one year but no more than
two years shall be required to complete the following portions of a commission-accredited Basic
Law Enforcement Training Course and successfully pass the State Comprehensive Examination
within the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a).
(A) Juvenile Law and Procedures 8 hours
(B) Laws of Arrest, Search and Seizure 16 hours
(C) Elements of Criminal Law 24 hours
(D) Controlled Substances 6 hours
(E) ABC Laws and Procedures 4 hours
(F) Motor Vehicle Laws 20 hours
(G) Law Enforcement Driver Training 16 hours
(H) Civil Process 24 hours
(I) Supplemental Custody Procedures 8 hours
(J) Firearms Qualification (Handgun and Shotgun Courses)
TOTAL HOURS 126 hours
(6) f7)Persons who have completed a minimum 160-hour Basic Law Enforcement Training Course
accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines
administered beginning on July 1, 1973 and continuing through September 30, 1978 and who have
been separated from a sworn law enforcement position for more than two years shall be required
to complete a commission-accredited Basic Law Enforcement Training Course in its entirety
regardless of training and experience and successfully pass the State Comprehensive Examination
within the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a).
(7) f8)Persons who have completed a minimum 240-hour Basic Law Enforcement Training Course
accredited by the North Carolina Criminal Justice Eklucation and Training Standards Commission
and the North Carolina Sheriffs' Education and Training Standards Commission under guidelines
administered beginning October 1 , 1978 and continuing through September 30, 1984 and who have
been separated from a sworn law enforcement position for over one year but no more than three
years shall be required to complete the following portions of a commission-accredited Basic Law
Enforcement Training Course and successfully pass the State Comprehensive Examination within
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a).
(A) Laws of Arrest, Search and Seizure 16 hours
(B) Elements of Criminal Law 24 hours
(C) Juvenile Laws and Procedures 8 hours
(D) Controlled Substances 6 hours
(E) ABC Laws and Procedures 4 hours
(F) Motor Vehicle Laws 20 hours
(G) Civil Process 24 hours
(H) Supplemental Custody Procedures 8 hours
(I) Firearms Qualification (Handgun and Shotgun Courses)
TOTAL HOURS 1 10 hours
(8) f9)Persons who have completed a minimum 240-hour Basic Law Enforcement Training Course
accredited by the North Carolina Criminal Justice Education and Training Standards Commission
and the North Carolina Sheriffs' Education and Training Standards Commission under guidelines
administered beginning October 1 , 1978 and continuing through September 30, 1984 and who have
been separated from a sworn law enforcement position for more than three years shall be required
to complete a commission-accredited Basic Law Enforcement Training Course in its entirety
regardless of prior training and experience and successfully pass the State Comprehensive
Examination within the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a).
(9) f+0)Persons who have completed a minimum 381 hour Basic Law Enforcement Training Course
accredited by the North Carolina Sheriffs' Education and Training Standards Commission under
guidelines administered beginning October 1, 1984 and ending December 31, 1988 and who have
been separated from a sworn law enforcement position for over one year but no more than three
years shall be required to complete the following portions of a commission-accredited Basic Law
750 8:9 NORTH CAROLINA REGISTER August 2, 1993
«
PROPOSED RULES
Enforcement Training Course and successfully pass the State Comprehensive Examination within
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a).
(A) Laws of Arrest, Search and Seizure
(B) Elements of Criminal Law
(C) Juvenile Laws and Procedures
(D) Controlled Substances
(E) ABC Laws and Procedures
(F) Motor Vehicle Laws
(G) Civil Process
(H) Supplemental Custody Procedures
(I) Firearms Qualification (Handgun and Shotgun Courses)
TOTAL HOURS 110 hours
(10) fH^Persons transferring to a sheriffs department from another law enforcement agency who hold
certification issued by the North Carolina Criminal Justice Education and Training Standards
Commission and who have previously completed a commission-accredited Basic Law Enforcement
Training Course beginning on or after October 1 , 1984 and who have been separated from a sworn
law enforcement position for no more than one year or who have had no break in service shall be
required to complete the following enumerated topics of a commission-accredited Basic Law
Enforcement Training Course and successfully pass that portion of the State Comprehensive
Examination which deals with those subjects within 12 months of the date of appointment as
defined in 12 NCAC lOB .0103(1).
(A) Civil Process 24 hours
(B) Supplemental Custody Procedures 8 hours
16 hours
24 hours
8 hours
6 hours
4 hours
20 hours
24 hours
8 hours
TOTAL HOURS 32 hours
(11) {+3)Persons who have completed a minimum 369-hour Basic Law Enforcement Training Course
accredited by the North Carolina Criminal Justice Education and Training Commission under
guidelines beginning October 1, 1984 and ending July 1, 1989 and who have been separated from
a sworn law enforcement position for over one year but no more than three years shall be required
to complete the following portions of a commission-accredited Basic Law Enforcement Training
Course and successfully pass the State Comprehensive Examination within the 12 month
probationary period as prescribed in 12 NCAC lOB .0503(a).
(A) Laws of Arrest, Search and Seizuree 16 hours
(B) Elements of Criminal Law 24 hours
(C) Juvenile Laws and Procedures 8 hours
(D) Controlled Substances 6 hours
(E) ABC Laws and Procedures 4 hours
(F) Motor Vehicle Laws 20 hours
(G) Civil Process 24 hours
(H) Supplemental Custody Procedures 8 hours
(I) Firearms Qualification (Handgun and Shotgun Courses)
TOTAL HOURS 110 hours
(12) <+3)Persons who have completed a minimum 422-hour Basic Law Enforcement Training Course
accredited by the North Carolina Sheriffs Education and Training Standards Commission under
the guidelines administered beginning January 1, 1989 and ending February 1, 1991 and who have
been separated from a sworn law enforcement position for over one year but no more than three
years shall be required to complete the following portions of a commission-accredited Basic Law
Enforcement Training Course and successfully pass the State Comprehensive Examination within
the 12 month probationary period as prescribed in 12 NCAC lOB .0503(a).
(A) Laws of Arrest, Search and Seizure 16 hours
(B) Elements of Criminal Law 24 hours
(C) Juvenile Laws and Procedures 8 hours
(D) Controlled Substances 6 hours
8:9 NORTH CAROLINA REGISTER August 2, 1993 751
PROPOSED RULES
4 hours
20 hours
24 hours
8 hours
(E) ABC Laws and Procedures
(F) Motor Vehicle Laws
(G) Civil Process
(H) Supplemental Custody Procedures
(I) Firearms Qualification (Handgun and Shotgun Courses)
TOTAL HOURS 1 10 hours
(13) f44)Persons who ha\e previously completed a minimum 410-hour Basic Law Enforcement Training
Course accredited by the North Carolina Criminal Justice Education and Training Standards
Commission under guidelines administered beginning July 1, 1989 and ending February 1, 1991
and who have been separated from a sworn law enforcement position for over one year but no
more than three years shall be required to complete the following portions of a
commission-accredited Basic Law Enforcement Training Course and successfully pass the State
Comprehensive Examination within the 12 month probationary period as prescribed in 12 NCAC
lOB .0503(a).
(A) Laws of Arrest, Search and Seizure 16 hours
(B) Elements of Criminal Law 24 hours
(C) Juvenile Laws and Procedures 8 hours
(D) Controlled Substances 6 hours
(E) ABC Laws and Procedures 4 hours
(F) Motor Vehicle Laws 20 hours
(G) Civil Process 24 hours
(H) Supplemental Custody Procedures 8 hours
(I) Firearms Qualification (Handgun and Shotgun Courses)
TOTAL HOURS 1 10 hours
(14) f4-^Persons who have completed a minimum 444-hour Basic Law Enforcement Training Course
accredited by the North Carolina Sheriffs' Education and Training Standards Commission under
the guidelines administered beginning February 1 , 1991 and who have been separated from a sworn
law enforcement position for over one year but no more than three years shall be required to
complete the following portions of a commission-accredited Basic Law Enforcement Training
Course and successfully pass the State Comprehensive Examination within the 12 month
probationary' period as prescribed in 12 NCAC lOB .0503(a).
(A) Laws of Arrest, Search and Seizure 16 hours
(B) Elements of Criminal Law 24 hours
(C) Juvenile Laws and Procedures 8 hours
(D) Controlled Substances 6 hours
(E) ABC Laws and Procedures 4 hours
(F) Motor Vehicle Laws 20 hours
(G) Civil Process 24 hours
(H) Supplemental Custody Procedures 8 hours
(I) Firearms Qualification (Handgun and Shotgun Courses)
TOTAL HOURS 110 hours
(15) H^Persons who have previously completed a minimum 432-hour Basic Law Enforcement Training
Course accredited by the North Carolina Criminal Justice Education and Training Standards
Commission under guidelines administered beginning February 1, 1991 and who have been
separated from a sworn law enforcement position for over one year but no more than three years
shall be required to complete the following portions of a commission-accredited Basic Law
Enforcement Training Course and successfully pass the State Comprehensive Examination within
the 12 month probationan,' period as prescribed in 12 NCAC lOB .0503(a).
(A) Laws of Arrest, Search and Seizure 16 hours
(B) Elements of Criminal Law 24 hours
(C) Juvenile Laws and Procedures 8 hours
(D) Controlled Substances 6 hours
752 8:9 NORTH CAROLINA REGISTER August 2, 1993
%
PROPOSED RULES
(E) ABC Laws and Procedures
(F) Motor Vehicle Laws
(G) Civil Process
(H) Supplemental Custody Procedures
(I) Firearms Qualification (Handgun and Shotgun Courses)
4 hours
20 hours
24 hours
8 hours
TOTAL HOURS 1 10 hours
(16) fW)Persons who have completed training as a federal law enforcement officer and are appointed as
a deputy sheriff in North Carolina shall be required to complete a commission-accredited Basic Law
Enforcement Training Course in its entirety regardless of previous federal training and experience
and successfully pass the State Comprehensive Examination within the 12 month probationary
period as prescribed in 12 NCAC lOB .0503(a).
(17) f4-8)Persons out of the law enforcement profession for over three years regardless of prior training
or experience shall complete a commission-accredited Basic Law Enforcement Training Course in
its entirety and successfully pass the State Comprehensive Examination within the 12 month
probationary period as prescribed in 12 NCAC lOB .0503(a).
(18) {+^Wildlife Enforcement Officers who completed the Basic Law Enforcement Training Course prior
to September 30, 1985 and are sworn as justice officers shall be subject to the evaluation rules as
stated in 12 NCAC lOB .0505(a)(1) and (a)(4) through (11).
(19) 430)Wildlife Enforcement Officers who separate from employment with the Wildlife Enforcement
Division and have less than one year break in service, who transfer to a Sheriffs Department in
a sworn capacity, and who completed their Basic Training after September 30, 1985 shall complete
the following blocs of instruction and pass the state exam in its entirety within one year of their
date of appointment as defined in 12 NCAC lOB .0103(1).
(A) Crime Prevention Techniques 4 hours
(B) Mechanics of Arrest: Custody Procedure 2 hours
(C) Mechanics of Arrest: Processing Arrestee 4 hours
(D) Special Populations 12 hours
(E) Techniques of Traffic Law Enforcement 6 hours
(F) Dealing with Victims and the Public 8 hours
(G) Civil Process 24 hours
(H) Supplemental Custody Procedures 8 hours
(I) Firearms Qualification (Handgun and Shotgun Courses)
20)
TOTAL HOURS 68 hours
(3-HWildlife Enforcement Officers who completed Basic Law Enforcement Training on or after
September 30, 1985 and have been out of a sworn position over one year but no more than three
years, and are sworn as a justice officer must complete the following blocs of instructions and pass
the state exam in its entirety during their probationary period as prescribed in 12 NCAC lOB .0503
(a).
(A) Laws of Arrest Search and Seizure 16 hours
(B) Elements of Criminal Law 24 hours
(C) Juvenile Laws and Procedures 8 hours
(D) Controlled Substances 6 hours
(E) ABC Laws and Procedures 4 hours
(F) Motor Vehicle Laws 20 hours
(G) Crime Prevention Techniques 4 hours
(H) Mechanics of Arrest: Custody Procedures 2 hours
(I) Mechanics of Arrest: Processing Arrestees 4 hours
(J) Special Populations 12 hours
(K) Techniques of Traffic Law Enforcement 6 hours
(L) Dealing with Victims and the Public 8 hours
(M) Civil Process 24 hours
(N) Supplemental Custody Procedures 8 hours
(O) Firearms Qualification (Handgun and Shotgun Courses)
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753
PROPOSED RULES
TOTAL HOURS 146 hours
(21) (33)Alcohol Law Enforcement Officers who completed the Basic Law Enforcement Training Course
prior to April 1, 1983 or after November i^. 1993, and are sworn as a justice officer shall be
subject to the evaluation rules as prescribed in 12 NCAC lOB ■Q505(a)(l) and (q)( 4 ) through (9)
.0505 (a)(3) through (8) and (a)(14) and (15).
(22) fS^Alcohol Law Enforcement Officers who separate from employment with the Alcohol Law
Enforcement Division and have less than a one year break in service, who transfer to a Sheriffs
Department in a sworn capacity, and who completed their Basic Training aft e r administered
beginning April 1, 1983 and ending November l^ 1993 shall complete the following blocs of
instruction and pass the state comprehensive exam in its entirety within one year of their date of
appointment as defined in 12 NCAC lOB .0103(1).
(A) Law Enforcement Communication and Information Systems 4 hours
(B) Patrol Techniques 16 hours
(C) Crime Prevention Techniques 4 hours
(D) Mechanics of Arrest: Vehicle Stops 6 hours
(E) Mechanics of Arrest: Custody Procedures 2 hours
(F) Mechanics of Arrest: Processing Arrestee 4 hours
(G) Special Populations 12 hours
(H) Interviews: Field and In-Custody 8 hours
(I) Motor Vehicle Law 20 hours
(J) Techniques of Traffic Law Enforcement 6 hours
(K) Dealing with Victims and the Public 8 hours
(L) Civil Process 24 hours
(M) Supplemental Custody Procedures 8 hours
(N) Firearms Qualification (Handgun and Shotgun Course)
TOTAL HOURS 122 hours
(23) <54)Alcohol Law Enforcement Officers who completed their Basic Training after administered
beginning April 1 , 1983 and ending November i^^ 1993 and are sworn as a justice officer and who
have been out of a sworn position for over one year but no more than three years shall complete
the following blocs of instruction and pass the state examination in its entirety during their one year
probationary period as prescribed in 12 NCAC lOB .0503(a).
(A) Laws of Arrest, Search and Seizure
(B) Elements of Criminal Law
(C) Juvenile Laws and Procedures
(D) Controlled Substances
(E) ABC Laws and Procedures
(F) Law Enforcement Communication and Information Systems
(G) Patrol Techniques
(H) Crime Prevention Techniques
(I) Mechanics of Arrest: Vehicle Stops
(J) Mechanics of Arrest: Custody Procedures
(K) Mechanics of Arrest: Processing Arrestee
(L) Special Populations
(M) Interviews: Field and In-Custody
(N) Motor Vehicle Law
(O) Techniques of Traffic Law Enforcement
(P) Dealing with Victims and the Public
(Q) Civil Process
(R) Supplemental Custody Procedures
(S) Firearms Qualification (Handgun and Shotgun Course)
TOTAL HOURS 180 hours
(b) In those instances not specifically incorporated within this Section or where an evaluation of the
applicant's prior training and experience determines that required attendance in the entire Basic Law
Enforcement Training Course would be impractical, the director is authorized to exercise his/her discretion
#
16 hours
24 hours
8 hours
6 hours
4 hours
4 hours
16 hours
4 hours
6 hours
2 hours
4 hours
12 hours
8 hours
20 hours
6 hours
8 hours
24 hours
8 hours
754
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NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
in determining the amount of training those persons shall complete during their probationary period.
Statutory Authority G.S. 17E-4; 17E-7.
SECTION .0600 - MINIMUM STANDARDS
OF TRAINING FOR JAILERS
.0602 TIME REQ/COMPLETION//JAILER
CERT TRAINING COURSE
(a) Each individual employed by a sheriffs
department as a jailer holding probationary
certification shall satisfactorily complete a
commission-accredited jailer training course. The
individual shall complete such course within one
year from the date of his original appointment as
a jailer as determined by the date of the
probationary certification. Any individual
employed as a jailer who does not comply with
this Rule or other training provisions of this
Chapter shall not be authorized to exercise the
powers of a jailer. If, however, an individual has
enrolled in a commission-accredited jailer course
that concludes later than the end of the individual's
probationary period, the Commission may extend,
for good cause shown, the probationary period for
a period not to exceed six months.
(b) Persons having completed a
commission-accredited jailer training course and
not having been duly appointed as a jailer within
one year of completion of the course shall
complete a subsequent commission-accredited jailer
training course in its entirety and successfully pass
the State Comprehensive Examination within the
12 month probationary period as prescribed in 12
NCAC lOB .0602(a)^ unless the Director
determines that a delay in a pplying for certification
was due to simple negligence on the part of the
applicant or employing agency, in which case the
Director may accep t the commission-accredited
jailer training program which is over one year old.
Such extension of the one year period shall not
exceed 30 days from the expiration date of a
commission-accredited jailer training program .
Statutory Authority G.S. 17E-4.
.0606 COMP WRITTEN EXAM - JAILER
CERTIFICATION COURSE
(a) At the conclusion of a school's offering of
the "Jailer Certification Course", an authorized
representative of the Commission shall administer
a comprehensive written examination to each
trainee who has satisfactorily completed all of the
course work. A trainee cannot be administered the
comprehensive written examination until such time
as all course work is successfully completed.
(b) The examination shall be an objective test
consisting of multiple-choice, true-false, or similar
questions covering the topic areas as described in
12 NCAC lOB .0601(b).
(c) The Commission's representative shall
submit to the school director within ten days of the
administration of the examination a report of the
results of the test for each trainee examined.
(d) A trainee shall successfully complete the
comprehensive written examination if he/she
achieves a minimum of 70 percent correct
answers .
(e) A trainee who has fully participated in a
scheduled delivery of an accredited training course
and has demonstrated satisfactory competence in
each motor-skill or performance area of the course
curriculum but has failed to achieve the minimum
score of 70 percent on the Commission's
comprehensive written examination may request
the Director to authorize a re-examination of the
trainee.
(1) A trainee's Request for Re-examination
shall be made in writing on the
Commission's form within 90 30 days
after the original examination and shall
be received by the Division before the
expiration of the trainee's probationary
certification as a jailer.
(2) The trainee's request for re-examination
shall include the favorable
recommendation of the school director
who administered the trainee's "Jailer
Certification Course".
(3) A trainee shall have only one
opportunity for re-examination and shall
satisfactorily complete the subsequent
examination in its entirety within 90
days after the original examination .
(4) A trainee will be assigned in writing by
the Division a place, time, and date for
re-examination.
(5) Should the trainee on re-examination
not achieve the prescribed minimum
score of 70 on the examination, the
trainee may not be recommended for
certification and must enroll and
complete a subsequent course in its
entirety before further examination may
be permitted.
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755
PROPOSED RULES
Statutory Authoriry G.S. 17E-4: 17E-7.
SECTION .0700 - MINIMUM STANDARDS
FOR JUSTICE OFFICER SCHOOLS AND
TRAINING PROGRAMS OR COURSES
OF INSTRUCTION
.0704 RESPONSIBILITIES: SCHOOL
DIRECTORS
(a) In planning, developing, coordinating, and
delivering each commission accredited Jailer
Certification Course, the school director shall:
(1) Formalize and schedule the course
curriculum in accordance with the
curriculum standards established by the
Commission.
(A) The Jailer Certification Course shall
be presented with a minimum of 40
hours of instruction each week during
consecutive calendar weeks until
course requirements are completed.
(B) In the event of exceptional or
emergency circumstances, the
Director may, upon written finding of
justification, grant a waiver of the
minimum hours requirement.
(2) Select and schedule qualified instructors
who are properly certified by the
Commission. The selecting and
scheduling of instructors is subject to
special requirements as follows:
(A) No single individual may be
scheduled to instruct more than 35
percent of the total hours of the
curriculum during any one delivery
except as set forth in (2)(B).
(B) Where the school director shows
exceptional or emergency
circumstances and the school director
documents that an instructor is
qualified to instruct more than 35
percent of the total hours of the
curriculum, the Director of the
Division may grant written approval
for the expansion of the individual
instructional limitation.
(3) Provide each instructor with a
commission-approved course outline
and all necessary additional information
concerning the instructor's duties and
responsibilities.
(4) Review each instructor's lesson plans
and other instructional materials for
conformance to established commission
standards and to minimize repetition
and duplication of subject matter.
(5) Shall permanently maintain records of
all Jailer Certification Courses
sponsored or delivered by the school,
reflecting:
(A) Course title;
(B) Delivery hours of course;
(C) Course delivery dates;
(D) Names and addresses of instructors
utilized within designated
subject-matter areas;
(E) A roster of enrolled trainees, showing
class attendance and designating
whether each trainee's course
participation was successful or
unsuccessful including individual test
scores and methods or instruments ;
(F) Copies of all rules, regulations and
guidelines developed by the school
director;
(G) Documentation of any changes in the
initial course outline, including
substitution of instructors; and
(H) Documentation of make-up work
achieved by each individual trainee,
including test scores and methods or
instruments .
(6) Arrange for the timely availability of
appropriate audiovisual aids and
materials, publications, facilities and
equipment for training in all topic
areas.
(7) Develop, adopt, reproduce, and
distribute any supplemental rules,
regulations, and requirements
determined by the school to be
necessary or appropriate for:
(A) Effective course delivery;
(B) Establishing responsibilities and
obligations of agencies or departments
employing course trainees; and
(C) Regulating trainee participation and
demeanor and ensuring trainee
attendance and maintaining
performance records.
A copy of such rules, regulations and
requirements shall be submitted to the
Director as an attachment to the
Pre-Deliver}' Report of Training Course
Presentation, Form F-7A. A copy of such
rules shall also be given to each trainee
and to the sheriff of each trainee's
employing agency at the time the trainee
enrolls in the course.
(8) If appropriate, recommend housing and
%
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756
8:9
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PROPOSED RULES
^
t)
>
dining facilities for trainees.
(9) Not less than 30 days before
commencing delivery of the course,
submit to the Commission a
Pre-Delivery Report of Training Course
Presentation (Form F-7A) along with
the following attachments:
(A) A comprehensive course schedule
showing arrangement of topical
presentations and proposed
instructional assignments;
(B) A copy of any rules, regulations, and
requirements for the school and, when
appropriate, completed applications
for Prof e osional Lectur e r Cortifioation
certification of instructors .
(C) The Director shall review the
submitted Pre-Delivery Report
together with all attachments to ensure
that the school is in compliance with
all commission mandated rules and
regulations; if school's rules are
found to be in violation, the Director
shall notify the school director of
deficiency, and approval will be
withheld until all matters are in
compliance with the Commissions"
rules.
(10) Administer the course delivery in
accordance with commission-approved
procedures, guidelines, and standards
and ensure that the training offered is
as effective as possible.
(11) Monitor or designate a certified
instructor to monitor the presentations
of all probationary instructors during
course delivery and prepare formal
written evaluations on their
performance and suitability for
subsequent instructional assignments.
These evaluations shall be prepared on
commission-approved forms and
forwarded to the Division at the
conclusion of each delivery. Based on
this evaluation the school director shall
have the added responsibility for
recommending approval or denial of
requests for General Jail Instructor
Certification, Limited Lecturer
Certification or Professional Lecturer
Certification.
(12) Monitor or designate a certified
instructor to monitor the presentations
of all other instructors during course
delivery and prepare formal written
evaluations on their performance and
suitability for subsequent instructional
assignments. Instructor evaluations
shall be prepared on
commission-approved forms in
accordance with commission standards.
These evaluations shall be kept on file
by the school for a period of three
years and shall be made available for
inspection by a representative of the
Commission upon request.
(13) Ensure that any designated certified
instructor who is evaluating the
instructional presentation of another
shall, at a minimum, hold certification
in the same instructional topic area as
that being taught.
(14) f4r^Administer or designate a qualified
person to administer appropriate tests as
determined necessary at various
intervals during course delivery.
(15) {44)Maintain direct supervision,
direction, and control over the
performance of all persons to whom
any portion of the planning,
development, presentation, or
administration of a course has been
delegated.
(16) f4-§)During a delivery of the Jailer
Certification Course, make available to
authorized representatives of the
Commission three hours of scheduled
class time and classroom facilities for
the administration of a written
examination to those trainees who have
satisfactorily completed all course
work.
(17) fi4)Not more than ten days after
receiving from the Commission's
representative the Report of
Examination Scores, the school director
shall submit to the Commission a
Post-Delivery Report of Training
Course Presentation (Form 7-B).
Statutory Authority G.S. 17E-4.
SECTION .0900 - MINIMUM STANDARDS
FOR JUSTICE OFFICER INSTRUCTORS
.0901 CERT/ESfSTRUCTORS/BASIC LAW
ENFORCEMENT TRAINING COURSE
The rules covering the certification of
instructors, codified as Title 12, Subchapter 9B,
Section .0300 of the North Carolina Administrative
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PROPOSED RULES
Code, and previously adopted by the North
Carolina Criminal Justice Education and Training
Standards Commission, are hereby incorporated by
reference, and shall automatically include any later
amendments and editions of the referenced
materials, to apply to actions of the North Carolina
Sheriffs' Education and Training Standards
Commission with the exception of instructors for
the Jailer Certification Course and inBtruotors for
th e Physiool Fitness topioal ar e a of th e Basic Law
Enforcem e nt Training Cour s e . Copies of the
publication may be obtained from the Office of
Administrative Hearings, Capehart-Crocker House,
424 North Blount Street, Raleigh, North Carolina
27601. TTie cost per copy is two dollars and fifty
cents ($2.50) for the first 10 pages and fifteen
cents ($0.15) for each page thereafter at the time
of adoption of this Rule.
Statutory Authority G.S. 17E-4.
.0902 PHYS FITNESS INSTRS//BASIC LAW
ENFORCEMENT TRAINING COURSE
Only — instructors — holding — Sp e cific — Instructor
C e rtification in th e Physical Fitn e ss topical ar e a
who w e r e c e rtifi e d by th e North Carolina Criminal
Justic e — Education — afid — Training — Standards
Commission under the following r e quir e m e nts
shall — be — authorized — te — instruct — the — mandat e d
Physical Fitn e ss topioal ar e a:
H^ Hold curr e nt G e n e ral Instructor
C e rtification issued by the North Carolina
Criminal Ju s tic e Education and Training
Standard s Commission; and
(3^ Successfully — compl e t e d — (be — p e rtin e nt
Physical — Fitn e ss — Sp e cific — In s tructor
Training — Cours e — as — approv e d — by — tfe«
North Carolina Criminal Justic e
Education afld Training Standards
Commission; and
(^9 Obtain th e r e comm e ndation of a school
dir e ctor c e rtified by the North Carolina
Criminal Justic e Education and Training
Standards Commission.
Statutory Authority G.S. 17E-4.
.0904 GENERAL JAILER EVSTRUCTOR
CERTIFICATION
An applicant for General Jailer Instructor
Certification shall meet the following
requirements:
(1) Present documentary evidence
demonstrating that the applicant:
(a) has attended and successfully completed
the North Carolina Sheriffs' Education
and Training Standards
Commission-approved Jail Training
Course; or holds a valid certification as
a jailer or correctional officer o*
d e monstrat e s — prior exp e ri e nc e — as — afi
instructor in the jail or corrootional
fi e ld ; and
^ has at least two y e ars of e xp e rionoo as
a — jailer, corr e ctional — offic e r — ef
instructor — ifl — tfee — fi e ld — of jails — &r
corr e ction;
(h) (e)holds General Instructor certification
issued by the North Carolina Criminal
Justice Education and Standards
Commission.
(2) Persons holding eely General Jailer
Instructor Certification may teach any
topical areas of instruction in the
Commission-mandated course with the
exception of those outlined in Rul e s
■09Q6(c) and 12 NCAC lOB .0908(a)(1)
through (7).
Statutory Authority G.S. 17E-4.
.0906 PROFESSIONAL LECTURER
CERTIFICATION
(a) The Commission may issue Professional
Lecturer Certification to a p e rson in a formally
r e cogniz e d — prof e ssion, — i-ren — m e dicin e , — tewr
psychology, — wbe — by — virtu e — ef — th e ir — formal
acad e mic — d e gr e e(6) — hav e — dev e lop e d — sp e cial
e xp e rtis e , licensed attomey-at-law or a person with
a law degree to teach the following topics in the
Jailer Certification Course:
(1) Civil Liability in the Jail;
(2) Legal Rights and Responsibilities;
(3) Legal Aspects of Criminal
Investigation.
(b) To be eligible for such certification an
applicant shall present documentary evidence
demonstrating that the applicant has:
(1) graduated from an accredited law
school , m e dical school or oth e r school
accr e dit e d — for conf e rring dogrocs — ie
formally recogniz e d — prof e ssions
acc e ptabl e to the Commi ss ion ;
(2) obtain obtained the endorsement of a
commission recognized school director
who shall:
(A) recommend the applicant for
certification as a professional lecturer;
and
(B) describe the applicant's expected
I
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PROPOSED RULES
participation, topical areas, duties and
responsibilities.
{©) Only — lic e ns e d — attorn e ys at law — holding
Prof e ssional Lectur e r C e rtification may t e ach th e
following topics:
{^ Civil Liability in th e Jail;
(3) Legal Righto and R es pon s ibiliti e s;
0^ Legal Asp e cts e-f Criminal
Investigation.
Statutory Authority G.S. 17E-4.
.0909 TERMS AND CONDITIONS OF A
LIMITED LECTURER
CERTIFICATION
(a) An applicant meeting the requirements for
certification as a Limited Lecturer shall, for the
first 12 months of certification, be in a
probationary status. The Limited Lecturer
Certification, Probationary Status, shall
automatically expire 12 months from the date of
issuance.
(b) The probationary instructor will be eligible
for full Limited Lecturer status at the end of the
probationary period if the instructor, through
application, submits to the Commission:
(1) a favorable recommendation from a
school director accompanied by
certification on a commission-approved
Instructor Evaluation Form that the
instructor taught at least four hours in
one or more of the topics for which
Limited Lecturer Certification,
Probationary Status was granted. Such
instruction must have occurred in a
commission-accredited jailer training
course during the probationary period.
The results of the student evaluation
must be considered by the school
director when determining the
recommendation; or
(2) a favorable written evaluation by a
commission or staff member, based on
an on-site classroom evaluation of the
probationary instructor in a
commission-accredited jailer training
course. Such evaluation must be
certified on a commission-approved
Instructor Evaluation Form completed
for one or more of the topics where the
probationary instructor taught a
minimum of four hoursT i and
(3) documentation that all other
certifications required in 12 NCAC lOB
.0908 remain valid.
(c) Full Limited Lecturer Certification shall be
continuous se — leag — as — aH — oth e r — o e rtifioationo
r e quired in 12 NCAC lOB .090 8 r e main valid, and
so long as the lecturer submits to the Division
every two years:
(1) a favorable written recommendation
from a school director accompanied by
certification on a commission-approved
instructor evaluation form that the
lecturer successfully taught at least four
hours in one or more of the topics for
which Limited Lecturer Certification
was granted during the previous
two-year period; or
(2) a favorable written evaluation by a
commission member or staff member
based on an on-site classroom
observation of the lecturer while
teaching a minimum of four hours in
one or more of the topics for which
Limited Lecturer Certification was
grantedT ; and
(3) a renewal application to include
documentation that all other
certifications required in 12 NCAC lOB
.0908 remain valid.
(d) The date Full Limited Lecturer Certification
is originally issued is the anniversary date from
which each two-year period is figured.
(e) If a lecturer does not teach a minimum of
four hours during each two-year period following
the awarding of Full Limited Lecturer
Certification, his/her certification automatically
expires, and the lecturer must then apply for
probationary limited lecturer certification and must
meet all applicable requirements.
Statutory Authority G.S. 17E-4.
SECTION .1000 - PROFESSIONAL
CERTIFICATE PROGRAM FOR SHERIFFS
AND DEPUTY SHERIFFS
.1003 BASIC LAW ENFORCEMENT
CERTIFICATE
In addition to the qualifications set forth in Rule
. 1002, an applicant for the Basic Law Enforcement
Certificate shall:
(1) have no less than one year of service;
and
(2) have successfully completed a
commission-accredited basic law
enforcement training course and any
remedial training as required by the
Commission; or
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759
PROPOSED RULES
(3) have completed a minimum of 160 hours
of training in the field of law
enforcement.
Statutory Authority G.S. 17E-4.
.1005 ADVANCED LAW ENFORCEMEISJT CERTIFICATE
(a) In addition to the qualifications set forth in Rule .1002, applicants for the Advanced Law Enforcement
Certificate shall possess or be eligible to possess the Intermediate Law Enforcement Certificate and shall have
acquired the following combination of educational points or degrees, law enforcement training points and years
of law enforcement experience:
Educational Degrees AA/AS AB/BS GRAB. /PRO.
Years of Law
Enforcement
Experience 12 9 9 6 4
Minimum Law
Enforcement
Training Points 35 50 33 27 23
Minimum Total
Education and
Training Points 69 99 33 27 23
fb) Educational points claimed shall have been earned at a technical institute, technical college, community
college, junior college, college or university accredited as such by the Department of Education of the state
in which the institution is located, the appropriate recognized accrediting body, or the state university of the
state in which the institution is located.
Statutory Authority G.S. 17E-4.
SECTION .1200 - PROFESSIONAL CERTIFICATE PROGRAM FOR JAILERS
.1205 ADVANCED JAILER PROFESSIONAL CERTIFICATE
(a) In addition to the qualifications set forth in Rule .1202, applicants for the Advanced Jailer Professional
Certificate shall possess or be eligible to possess the Intermediate Jailer Professional Certificate and shall have
acquired the following combination of educational points or degrees, jail or corrections training points and
years of jailer experience:
Educational Degrees AA/AS AB/BS GRAD./PRO.
Years of Jailer
Experience
12
9
9
6
4
Minimum Jailer
Training Points
12
16
27
26
26
Minimum Total
Education and
Training Points 23 33 27 26 26
(h) Educational points claimed shall have been earned at a technical institute, technical college, community
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PROPOSED RULES
college, junior college, college or university accredited as such by the Department of Education of the state
in which the instittition is located, the appropriate recognized accrediting body, or the state university of the
state in which the institution is located.
Statutory Authority G.S. 17E-4.
SECTION .2100 - JUSTICE OFFICERS'
FIREARMS IN-SERVICE TRAINING
REQUALIFICATION PROGRAM
.2104 IN-SERVICE FIREARMS
REQUALIFICATION
SPECIFICATIONS
(a) All justice officers who are authorized by the
sheriff to carry a handgun shall qualify a minimum
of once each year with each handgun that the
officer is authorizod to carry whil e on duty on a
commission approv e d day and night oour o e their
individual and department-approved service
handgun . TTie course of fire shall not be less
stringent than the "Basic Law Enforcement
Training Course" requirements for firearms
qualification.
(b) All justice officers who are issued, or
otherwise authorized by the sheriff to carry a
shotgun, rifle, or automatic weapon shall be
required to qualify with each weapon respectively
a minimum of once each year es — a
commission approved cours e of fire .
(c) Qualifications conducted pursuant to Para-
graphs (a) and (b) of this Rule shall be completed
with duty equipment and duty ammunition or duty-
type ammunition meeting the specifications of the
duty ammunition as to type projectile, weight and
velocity.
(d) All justice officers who are authorized by the
sheriff to carry off duty handguns shall qualify
with their off duty handgun a minimum of once
each year pursuant to 12 NCAC lOB .2103 and
.2104(a) and (b) with each handgun the officer
carries off duty using ammunition approved by the
sheriff.
(e) All justice officers who are issued or have
access to any weapons not stated in this Rule must
qualify with these weapons once each year using
ammunition approved by the sheriff.
(f) In cases where reduced-sized targets are used
to simulate actual distances, a modified course of
fire may be used.
(g) To satisfy the minimum training require-
ments for all in-service firearms requalifications,
a justice officer shall attain a minimum qualifica-
tion score of 70 percent accuracy with each weap-
on once in three attempts with no more than three
attempts on each course of fire per day.
fh) The "In-Service Firearms Qualification
Manual" as published by the North Carolina
Justice Academy is hereby incorporated by refer-
ence, and shall automatically include any later
amendments or editions of the referenced materials
to apply as a minimum guide for conducting the
annual in-service firearms qualification. Copies of
the publication may be obtained from the North
Carolina Justice Academy, Post Office Drawer 99,
Salemburg, North Carolina 28385. There is no
cost per manual at the time of adoption of this
Rule.
Statutory Authority G.S. 17E-4; 17E-7.
ISotice is hereby given in accordance with G.S.
1508-21. 2 that the North Carolina Alarm Systems
Licensing Board intends to adopt rule cited as 12
NCAC 11 .0209.
1 he proposed effective date of this action is
November 1, 1993.
1 he public hearing will be conducted at 2:00
p.m. on August 17, 1993 at the State Bureau of
Investigations, Conference Room, 3320 Old Gar-
ner Rd. . Raleigh. NC 27626.
Ixeason for Proposed Action: Requires a firm,
association, or corporation which is engaged in or
will be engaged in the alarm systems business
profession to obtain a corporate business license.
(comment Procedures: Interested persons may
present their views either orally or in writing at
the hearing. In addition, the record of the hearing
will be open for receipt of written comments
through September 1, 1993. Written comments
may be delivered to: James Kirk, Administrator,
3320 Old Gamer Rd., P.O. Box 29500, Raleigh,
NC 27626.
CHAPTER 11 - NORTH CAROLINA
ALARM SYSTEMS LICENSING BOARD
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PROPOSED RULES
SECTION .0200 - PROVISIONS FOR
LICENSEES
.0209 CORPORATE BUSINESS LICENSE
(a) Any firm, association, or corporation re-
quired to be licensed pursuant to G.S. 74D-2(a)
shall submit an application for a corporate business
license on a form provided by the Board. This
application for license shall call for such informa-
tion as the firm, association, or corporation name;
the address of its principal office within the State;
any past conviction for criminal offenses of any
corporate director, or officer; information concern-
ing the past revocation, suspension or denial of a
business or professional license to any director, or
officer; a list of all directors and officers of the
firm, association, or corporation; a list of all
persons, firms, associations, corporations or other
entities owning 10 percent or more of the outstand-
ing shares of any class of stock; and the name and
address of the qualifying agent.
£b} In addition to the items required in Para-
graph (a) of this Rule, a foreign corporation shall
further qualify by filing with its application for a
license, a copy of its certificate of authority to
transact business in this state issued by the North
Carolina Secretary of State in accordance with
G.S. 55-131 and a consent to service of process
and pleadings which shall be authenticated by its
corporate seal and accompanied by a duly certified
copy of the resolution of the board of directors
authorizing the proper officer or officers to exe-
cute said consent.
(c) After filing a completed written application
with the Board, the Board shall conduct a back-
ground investigation to ascertain if the qualifying
agent is in a management position. The Board
shall also determine if the directors, or officers
have the requisite good moral character as defined
in G.S. 74D-6(3). It shall be prima facie evidence
of good moral character if a director or officer has
not been convicted by any local. State, federal, or
military court of any crime involving the use,
carrying, or possession of a firearm; conviction of
any crime involving the use, possession, sale,
manufacture, distribution, or transportation of a
controlled substance, drug, narcotic, or alcoholic
beverage; conviction of a crime involving assault
or an act of violence; conviction of a crime involv-
ing breaking or entering, burglary, larceny, or any
offense involving moral turpitude; or does not
have a history of addiction to alcohol or a narcotic
drug; provided that, for purposes of this Section,
"conviction" means and includes the entry of a
ea of guilty or no contest or a verdict rendered
in open court by a judge or jury.
(d) Upon satisfactory completion of the back-
ground investigation, a corporate business license
may be issued. This license shall be conspicuously
displayed at the principle place of business within
the State of North Carolina.
(e) The corporate business license shall be
issued only to the corporation and shall not be
construed to extend to the licensing of its direc-
tors, officers, or employees.
(f) The issuance of the corporate business
license is issued to the firm, association, or corpo-
ration in addition to the license issued to the
qualifying agent. Therefore, the qualifying agent
for the firm, association, or corporation which has
been issued the corporate business license shall be
responsible for assuring compliance with G.S.
74D.
Statutory Authority G.S. 74D-2(a); 74D-5.
TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
Jylotice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Commission for Health
Services intends to adopt rule cited as 15A NCAC
19A .0406.
Ihe proposed effective date of this action is
January 4, 1994.
Ihe public hearing will be conducted at 1:30
p.m. on September 13, 1993 at the Norton Board
Room, 6th Floor, Cooper Memorial Health Build-
ing, 225 N. McDowell Street, Raleigh, N.C.
Ixeason for Proposed Action: Pursuant to the
6/7/93 passage of HB 452, "An Act to Clarify the
Requirements of the General Statutes Pertaining to
Immunizations", rules are required to specify the
immunization information that can be provided to
schools, day-cares. Head Start and colleges and
universities that are due to resume in September
1993.
I
in
(comment Procedures: All persons interested ii
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P. O. Box 629,
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PROPOSED RULES
Raleigh, NC 27602-0629. Persons who wish to
speak at the hearing should contact John P.
Barkley at (919)733-4618. Persons who call in
advance of the hearing will be given priority on
the speaker 's list. Oral presentation lengths may
be limited depending on the number of people that
wish to speak at the public hearing. Only persons
who have made comments at a public hearing or
who have submitted written comments will be
allowed to speak at the Commission meeting.
Comments made at the Commission meeting must
either clarify previous comments or proposed
changes from staff pursuant to comments made
during the public hearing process.
IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS. BUSINESSES.
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS. WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
R ULES A T THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S. 150B-21.2(f).
Note: NOTICE OF INTENT TO ADOPT A
TEMPORARY RULE
Notice is hereby given thai the EHNR-
Commission for Health Services intends to adopt
this Rule in a temporary action, Eff. August 9,
1993, For a Period of 180 Days or Until the
Permanent Rule Becomes Effective, Whichever is
Sooner.
The Commission for Health Services will decide
on the proposed adoption of the temporary rule at
its regularly scheduled meeting on August 4,
1993. This meeting starts at 10:00 a.m. and will
be held in the Norton Board Room, Cooper
Memorial Health Building-6th Floor, 225 N.
McDowell St., Raleigh, N.C.
CHAPTER 19 - HEALTH: EPIDEMIOLOGY
SUBCHAPTER 19A - COMMUNICABLE
DISEASE CONTTROL
SECTION .0400 - IMMUNIZATION
.0406 ACCESS TO IMMUNIZATION
INFORMATION
(a) Immunization information may be released in
whole or in part with the written consent of the
person identified or their guardian.
(b) Immunization information specified in
Paragraph (c) of this Rule may also be obtained
from a physician or local health department upon
request by:
(1) schools K-12, whether public, private
or religious;
licensed and registered daycare facilities
as defined in G.S. 110-86(3) and G.S.
110-102;
Head Start; an d
whether
£2)
13}
14}
colleges and universities,
public, private or religious.
(c) Upon request, persons specified in Paragraph
obtain the following
individual for whom a
rb) of this Rule may
information about each
certificate of immunization is required by G.S.
130A-155and 155.1:
(1) name and address;
(2) name of the parent, guardian, or person
in loco parentis;
£3} date of birth;
(4) gender;
(5) vaccine type. date and dose
administered;
(6) the name and address of the physician
or health department that administered
each dose; and
(7) certification of medical and religious
exemptions pursuant to G.S. 130A-156
and 157 and 15 A NCAC 19A .0204.
Statutory Authority G.S. 130A-153.
TITLE 21 - OCCUPATIONAL
LICENSING BOARDS
jy/otice is hereby given in accordance with G.S.
150B-21.2that the North Carolina State Board of
Dental Examiners intends to amend rules cited as
21 NCAC 16B .0304; I6C .0203. .0304; 16D
.0101 - .0102; 16H .0104. .0203, .0205 and 16Q
.0204, .0301, .0303. .0403.
1 he proposed effective date of this action is
November 1, 1993.
1 he public hearing will be conducted at 2:00
p.m. on August 20. 1993 at the Highway Building,
One South Wilmington Street. 1st Floor Auditori-
um, Raleigh, NC 27611.
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PROPOSED RULES
MXeason for Proposed Action:
21 NCAC 16B .0304 - To require applicants for
dental licensure, who are licensed in other states,
to furnish verification of licensure from the secre-
tary of the dental board of each state in which they
are licensed and to change the language in the
rule to conform to a change on the application.
21 NCAC 16C .0203 - To delete requirement that
applicants for dental hygiene licensure furnish
transcripts of high school credits or a copy of an
equivalency certificate.
21 NCAC 16C .0304 - To require applicants for
dental hygiene licensure, who are licensed in other
states, to furnish verification of licensure from the
secretary of the dental board of each state in
which they are licensed.
21 NCAC 16D .0101 - To require an applicant for
provisional licensure to present to the Board
documentary evidence satisfactory to the Board
that he is in good standing with the dental licens-
ing agencies of all Jurisdictions in which he is
currently licensed to practice dentistry.
21 NCAC 16D .0102 - To allow the Board to
require that a provisional licensee be supervised by
a dentist licensed in North Carolina.
21 NCAC 16H .0104 - To delete requirement that
Dental Assistants must be currently certified by the
Dental Assisting National Board.
21 NCAC 16H . 0203 - To allow a Dental Assistant
II to polish supragingival surfaces of natural and
restored teeth by means of a rotary rubber cup or
brush.
21 NCAC 16H .0205 - To delete prohibition that
neither a Dental Assistant I nor a Dental Assistant
II shall perform a prophylaxis or remove stains,
accretions or deposits from the teeth.
21 NCAC 16Q .0204 - To allow that inspections
only involving a facility and equipment check may
be accomplished by one or more evaluators.
21 NCAC 16Q .0301 - To allow a dentist applying
for a permit to administer sedation to utilize a
certified registered nurse anesthetist under his
supervision to administer intravenous sedation to
dental patients.
21 NCAC 16Q .0303 - To allow evaluations of
dentists applying for sedation permits to be con-
ducted by dentists who have been issued sedation
permits by the Board and have administered
sedation for at least three years.
21 NCAC 16Q .0403 - To add that on-site inspec-
tions shall also be conducted in accordance with
Rule I6Q .0303.
(comment Procedures: Any person desiring to
present oral data, views, or arguments on a
proposed rule must, at least 10 days prior to the
proposed hearing, file a notice with the Board.
Notice of such request to appear or a failure to
give timely notice may be waived by the Board in
its discretion. Comments should be limited to 5
minutes. Any person permitted to make an oral
presentation is directed to submit a written state-
ment of such presentation to the Board prior to or
at the time of such hearing. The Board's address
is P. O. Box 32270, Raleigh, NC 27622-2270. Any
person may file written submission of comments or
argument at any time up to and including Septem-
ber I, 1993.
CHAPTER 16 - BOARD OF DEISfTAL
EXAMINERS
SUBCHAPTER 16B - LICENSURE
EXAMINATION: DENTISTS
SECTION .0300 - APPLICATION
.0304 OTHER REQUIREMENTS
Applicants who are licensed in other states are
required to furnish verification of licensure from
the secretary of the dental board of each state in
which they are licensed. Letters of recommenda-
tion which ar e substitut e d for the oharaoter ref e r
e no e s in th e application must be received in the
Board's office before the application is considered
complete. A photograph, taken within six months
prior to the date of the application, must be affixed
to the application. A second photograph, not over
two inches in height, must be paper-clipped to the
application to be used as part of the identification
badge.
Statutory Authority G.S. 90-28; 90-30; 90-48.
SUBCHAPTER 16C - LICENSURE
EXAMINATION: DENTAL
HYGIENIST
SECTION .0200 - QUALIFICATIONS
.0203 TRANSCRIPTS REQUIRED
Applicants are required to furnish transcripts of
high school creditB or a copy of an equivalency
certifioat e duly i ss u e d by a gov e rnm e ntal ag e ncy
or unit authoriz e d to issue th e same togeth e r with
dental hygiene school or college credits. These
transcripts are to accompany the application, or
%
%
#
764
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
may be mailed to the Board's office from the
record department of each school attended.
Statutory Authority G. S. 90-223; 90-224.
SECTION .0300 - APPLICATION
.0304 OTHER REQUIREMENTS
Applicants who hav e b ee n in praotio e are IN
censed in other states are required to furnish
verification of licensure from the secretary of the
dental board of the each state in which they last
praotio e d are licensed , together with two letters of
recommendation, preferably written by dentists.
A photograph, taken within six months prior to the
date of application, must be affixed to the applica-
tion. A second photograph, not over two inches in
height, must be paper-clipped to the application, to
be used as a part of the identification badge.
Statutory Authority G.S. 90-223; 90-224.
SUBCHAPTER 16D - PROVISIONAL
LICENSURE: DENTISTS
SECTION .0100 - GENERAL PROVISIONS
.0101 ELIGIBILITY REQUIREMENTS
(a) No p e rson Persons shall be eligible for
provisional licensure under the provisions of G.S.
90-29.3 who has not if they have been licensed to
practice dentistry in another jurisdiction for a
period of not l e s s than at least two years immedi-
ately preceding the date of application for provi-
sional licensure.
(b) An applicant for provisional licensure must
present to the Board documentary evidence satis-
factory to the Board that he is in good standing
with the dental licensing ag e ncy agencies of the aH
jurisdictions wherein he is then currently licensed
to practice dentistry.
(c) No person shall be eligible for provisional
licensure who has been censured, disciplined, or
punished by any dental licensing agency or dental
organization for violation of professional ethics or
the laws of any jurisdiction.
Statutory Authority G.S. 90-28; 90-29.3; 90-48.
.0102 RESTRICTIONS ON PRACTICE
(a) Any provisional license issued to a member
of the faculty of an educational institution shall
limit the practice of such provisional licensee to
the confines of the facilities provided by the
educational institution of which he is a faculty
member.
(b) In those instances in which the Board deems
such restriction appropriate, the dental practice of
a provisional licensee may be restricted to a
geographic location or to a specialized field of
dentistry, or both. Supervision by a dentist li;
censed in North Carolina may also be required.
Statutory Authority G.S. 90-29.3.
SUBCHAPTER 16H - DENTAL
ASSISTANTS
SECTION .0100 - CLASSIFICATION
AND TRAINING
.0104 APPROVED EDUCATION
AND TRAINING PROGRAMS
Education and training programs approved by the
North Carolina State Board of Dental Examiners
and experience requirements qualifying Dental
Assistants as Dental Assistant II include:
(1) satisfactory completion of one academic
year or longer in a Dental Assistant or
Dental Hygiene program approved by the
Commission on Dental Accreditation of
the American Dental Association;
(2) full-time employment as a chairside
assistant (Dental Assistant I) by a dentist
licensed in North Carolina for three
consecutive years of the preceding five,
completion of a Board-approved course
in intraoral radiography, and completion
of didactic training in a dental assisting
course approved by the Board that must
include asepsis and dental emergencies;
(3) a curr e ntly c e rtifi e d d e ntal assistant (o e r
tifi e d by the D e ntal A s sigting National
Board) successful completion of the
certification examination administered by
the Dental Assisting National Board ; and
(4) completion of equivalent training and
experience as approved by the Board.
Statutory Authority G.S. 90-29(c)(9).
SECTION .0200 - PERMITTED FUNCTIONS
OF DENTAL ASSISTANT
.0203 PERMITTED FUNCTIONS OF
DENTAL ASSISTANT II
A Dental Assistant II may do and perform any
and all acts or functions which may be done or
performed by a Dental Assistant I. Additionally,
a Dental Assistant II, after adequate training and
8:9
NORTH CAROLINA REGISTER
August 2, 1993
765
PROPOSED RULES
qualification, may be delegated appropriate func-
tions to be performed under the direct control and
supervision of a dentist who shall be personally
and professionally responsible and liable for any
and all consequences or results arising from the
performance of such acts and functions. A Dental
Assistant II may:
(1) Take impressions for study models and
opposing casts which will not be used for
construction of dental appliances;
(2) Apply sealants to teeth that do not re-
quire mechanical alteration prior to the
application of such sealants, provided a
dentist has examined the patient and
prescribed the procedure^ and
(3) Polish supragingival surfaces of natural
and restored teeth by means of a rotary
rubber cup or brush and appropriate
polish agents.
may be accomplished by one or more evaluators.
(b) Any dentist-member of the Board may
observe or consult in any evaluation.
(c) The inspection team shall determine compli-
ance with the requirements of these rules, as
applicable, by assigning a grade of "pass" or
"fail".
(d) Each evaluator shall report his recommenda-
tion to the Board, setting forth the details support-
ing his conclusion. The Board is not bound by
these recommendations. The Board will make the
final determination as to whether or not the appli-
cant has passed the evaluation/inspection and will
so notify the applicant, in writing.
(e) At least a 15-day notice will be given prior
to an evaluation or inspection. The entire inspec-
tion fee of two hundred seventy-five dollars
($275.00) will be due ten days from the date of
receipt of such notice.
f
Statutory Authority G.S. 90-29(c)(9); 90-48.
.0205 SPECIFIC PROfflBITED
FUNCTIONS OF DENTAL
ASSISTANTS I AND II
Those specific functions which shall not be
delegated to either a Dental Assistant I or a Dental
Assistant II include those procedures prohibited in
21 NCAC 16G, Rule .0003 for Dental Hygienists.
In addition, neither a Dental Accistant I nor a
Dental Assistant II ohall p e rform a prophylaxis or
romovo stains, accr e tions or deposits from th e
teeth
Statutory Authority G.S. 90-29(c)(9); 90-48.
SUBCHAPTER 16Q - GENERAL
ANESTHESIA AND SEDATION
SECTION .0200 - GENERAL
ANESTHESIA
.0204 PROCEDURE FOR EVALUATION
OR INSPECTION
(a) When an evaluation or on-site inspection is
required, the Board will designate two or more
persons, each of whom is qualified to administer
general anesthesia and has so administered such
for a minimum of three years preceding the inspec-
tion, exclusive of his training in general anesthe-
sia. At least one of the evaluators must have had
experience in the evaluation of dentists using
general anesthesia. When an on-site inspection
involves only a facility and equipment check and
not an evaluation of the dentist, such inspection
Statutory Authority G.S. 90-28; 90-30.1.
SECTION .0300 - SEDATION
.0301 SEDATION CREDEIVTriALS
AND PERMIT
(a) A dentist may administer or employ a
certified registered nurse anesthetist to administer
sedation to dental patients on an outpatient basis
provided he obtains a permit from the Board by
submitting the appropriate information on an
application form provided by the Board and pays
a fee of fifty dollars ($50.00).
(b) A dentist applying for a permit to administer
sedation must meet at least one of the following
criteria:
(1) Satisfactory completion of a minimum
of 60 hours of didactic training and
instruction in intravenous conscious
sedation and satisfactory management
of a minimum of ten patients, under
supervision, using intravenous sedation
in a training program approved by the
Board; or
(2) Satisfactory completion of an
undergraduate or postgraduation
program which included intravenous
conscious sedation training equivalent
to that defined in Subparagraph (1) of
this Rule; or
(3) Satisfactory completion of an internship
or residency which included intravenous
conscious sedation training equivalent
to that defined in Subparagraph (1) of
this Rule; or
#
#
766
8:9
NORTH CAROLINA REGISTER
August 2, 1993
PROPOSED RULES
(4) Authorization for the use of general
anesthetics by holding a permit for the
same issued by the Boardv^ or
(5) Utilization of a certified registered
nurse anesthetist under his supervision
to administer intravenous sedation to
dental patients.
(c) To be eligible for a sedation permit, a dentist
must be operating within a properly equipped
facility, which includes the capability of delivering
positive pressure oxygen, staffed with supervised
auxiliary personnel capable of handling proce-
dures, problems and emergencies incident thereto.
(d) The dentist seeking a permit must be trained
and capable of administering basic life support.
(e) The Board may, based upon formal applica-
tion, grant a permit authorizing the use of sedation
to a dentist who has been utilizing sedation in a
competent and effective manner for the past five
years, but who has not had the benefit of formal
training as outlined in Paragraph (b) of this Rule,
provided that said dentist meets the requirements
of Paragraphs (c) and (d) of this Rule.
Statutory Authority G.S. 90-28; 90-30.1.
.0303 TEMPORARY APPROVAL PRIOR
TO SITE EVALUATION
(a) If a dentist meets the requirements of Rule
.0301 of this Section, he shall be granted tempo-
rary approval to continue to administer sedation
until a permit can be issued. Temporary approval
may be granted based solely on credentials until all
processing and investigation has been completed.
Temporary approval may not exceed 12 months.
An on-site evaluation of the facilities, equipment,
procedures and personnel will be required. The
evaluation will be conducted in accordance with
Rules .0202-. 0205 of this Subchapter, and f e es
r e quir e d by thos e rul e s will apply except that
evaluations of dentists applying for sedation per-
mits may be conducted by dentists who have been
issued sedation permits by the Board and who have
administered sedation for at least three years.
Fees required by Rules .0202 z 0205 of this
Subchapter will apply .
(b) An evaluation may be made any time it is
deemed necessary by the Board.
Statutory Authority G.S. 90-28; 90-30.1.
SECTION .0400 - RENEWAL OF
PERMITS
.0403 INSPECTION AUTHORIZED
Incident to the renewal of an anesthesia or
sedation permit, the Board may, in its discretion,
require an on-site inspection of the dentist's facili-
ty, equipment, personnel and procedures. Such
inspection shall be conducted in accordance with
Rules .0204^ aad .0205, and .0303 of this Sub-
chapter.
Statutory Authority G.S. 90-28; 90-30.1.
I\otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Board of
Physical Therapy Examiners intends to amend
rules cited as 21 NCAC 48D .0009; 21 NCAC 48E
.0101.
1 he proposed effective date of this action is
November 1, 1993.
1 he public hearing will be conducted at 2:00
p.m. on August 26, 1993 at the NC Board of
Physical Therapy Examiners, 18 West Colony
Place, Suite 120, Durham, North Carolina 27705.
Jxeason for Proposed Action: To change filing
deadline to comply with testing service require-
ments for ordering examinations.
(comment Procedures: Interested persons may
present their views either orally or in writing at
the hearing. In addition, the record of hearing
will be open for receipt of written comments from
August 2, 1993 to 5:00 p.m. on September 3,
1993. Such written comtnents must be delivered or
mailed to Constance W. Peake, NC Board of
Physical Tlierapy Examiners, 18 West Colony
Place, Suite 120, Durham, NC 27705.
CHAPTER 48 - BOARD OF PHYSICAL
THERAPY EXAMINERS
SUBCHAPTER 48D - EXAMINATIONS
.0009 RETAKING EXAMINATION
(a) Arrangements for Retake. To retake the
examination, the applicant must notify the execu-
tive secretary at least 45 60 days in advance of the
examination date and pay the retake fee and the
examination cost at that time.
(b) Retake Examination. The Board will admin-
8:9
NORTH CAROLINA REGISTER
August 2, 1993
767
PROPOSED RULES
ister a particular form of the examination to an
applicant only one time.
Statutory^ Authority G.S. 90-270.26; 90-270.29;
90-270.30: 90-270.32.
SUBCHAPTER 48E - APPLICATION FOR
LICENSURE
SECTION .0100 - REQUIREMENTS
.0101 FILING APPLICATION
(a) It is the responsibility of the applicant to
ascertain that his credentials are filed properly with
the executive secretary.
(b) To be certain an applicant will be considered
for the desired examination date^. the h e d e oir & s, h e
must submit hio application must be submitted to
the executive secretary at least 44 60 days prior to
the examination.
Statutory Authority G.S. 90-270.26; 90-270.29;
90-270'31(h).
f
I
i
768 8:9 NORTH CAROLINA REGISTER August 2, 1993
LIST OF RULES CODIFIED
J. he List of Rules Codified
is a listing of rules that were filed with OAH in the month indicated.
K.ey:
Citation
=
Title, Chapter, Subchapter and Rule(s)
AD
=
Adopt
AM
=
Amend
RP
=
Repeal
With Chgs
=
Final text differs from proposed text
Con
=
Typographical errors or changes that requires no rulemaking
Eff. Date
=
Date rule becomes effective
Temp. Expires
^
Rule was filed as a temporary rule and expires on this date or 180 days
NORTH CAROLE^JA ADMINISTRATIVE CODE
JUNE 93
[TLE
DEPARTMENT
TITLE
DEPARTMENT
1
Administration
21
Occupational Licensing Boards
2
Agriculture
2 - Architecture
10
Human Resources
8 - CPA Examiners
12
Justice
14 - Cosmetic Art Examiners
13
Labor
26 - Landscape Architects
15A
Environment, Health,
32 - Medical Examiners
and Natural Resources
34 - Mortuary Science
16
Public Education
36 - Nursing
17
Revenue
48 - Physical Therapy Examiners
19A
Transportation
58 - Real Estate Commission
Citation
AD
AM
RP
With
Chgs
Corr
Eff.
Date
Temp.
Expires
I NCAC 26C .0001 - .0004
/
07/01/93
.0005
/
/
07/01/93
.0006 - .0008
/
07/01/93
30D .0302
/
07/01/93
39 .0201
/
/
07/01/93
2 NCAC 9L .1801 -.1804
/
07/01/93
.1805
/
07/01/93
10 NCAC 14B .0501 - .0502
/
07/01/93
.0503
/
/
07/01/93
.0504
/
07/01/93
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NORTH CAROLINA REGISTER
August 2, 1993
769
LIST OF RULES CODIFIED
Citation
AD
AM
RP
With
Chgs
Corr
Eff.
Date
Temp.
Expires
10 NCAC I4B .0505
/
07/01/93
.0506
/
/
07/01/93
.0507 - .0508
/
07/01/93
.0509
/
07/01/93
14K .0103
/
/
07/01/93
.0315
/
/
07/01/93
18D .0208
/
07/01/93
18H .0109 -.0110
/
/
07/01/93
.0111 - .0112
/
07/01/93
.0114
/
/
07/01/93
.0115
/
07/01/93
.0116
/
/
07/01/93
18L .1515
/
07/01/93
18M .1404
/
07/01/93
41Q .0201
/
07/02/93
45H .0202
/
07/01/93
.0205
/
07/01/93
12 NCAC 2A .0203
/
07/01/93
11 .0301
/
/
07/01/93
13 NCAC 7C .0101
/
07/14/93
15A NCAC 2D .0903
/
/
07/01/93
.0912
/
07/01/93
.1002
/
/
07/01/93
.1004
/
07/01/93
31 ,0001
/
/
07/01/93
3J .0103
/
/
07/01/93
.0401
/
/
07/01/93
3K .0101
/
07/01/93
.0304
/
/
07/01/93
.0506
/
/
07/01/93
3L .0201
/
07/01/93
3M .0103
/
/
07/01/93
.0508
/
07/01/93
770
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August 2, 1993
LIST OF RULES CODIFIED
^
)
)
Citation
AD
AM
RP
With
Chgs
Corr
Eff.
Date
Temp.
Expires
15A NCAC 3M .0510
/
/
07/01/93
3Q .0107
/
07/01/93
.0202
/
07/01/93
3R .0002
/
/
07/01/93
.0007
/
/
07/01/93
.0008
/
07/01/93
8A .0101
/
07/01/93
.0102
/
07/01/93
.0202
/
/
07/01/93
.0301
/
07/01/93
.0302
/
/
07/01/93
.0303
/
07/01/93
8B .0101
/
07/01/93
.0102
/
/
07/01/93
.0108 - .0109
/
/
07/01/93
.0201 - .0202
/
/
07/01/93
.0205
/
/
07/01/93
.0206
/
07/01/93
.0207 - .0212
/
/
07/01/93
.0213
/
07/01/93
.0214
recodified from
.0205
/
/
07/01/93
.0301 - .0303
/
07/01/93
.0402
/
07/01/93
.0404
*
07/01/93
.0406
/
07/01/93
.0502
/
/
07/01/93
.0506
/
/
07/01/93
8C .0002
/
/
07/01/93
.0004
/
/
07/01/93
.0005
/
/
07/01/93
.0006 - .0008
/
07/01/93
8D .0002
/
07/01/93
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August 2, 1993
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LIST OF RULES CODIFIED
Citation
AD
AM
RP
With
Chgs
Corr
Eff.
Date
Temp.
Expires
15 A NCAC 8D .0004 - .0005
/
07/01/93
.0006
/
/
07/01/93
lOA .0401 - .0402
/
07/01/93
lOB .0113
/
07/01/93
.0115
/
07/01/93
.0203
/
/
07/01/93
.0209
/
/
07/01/93
.0219
/
07/01/93
IOC .0107
/
/
07/01/93
.0108
/
07/01/93
.0205
/
/
07/01/93
.0206
/
07/01/93
.0208
/
07/01/93
.0302
/
07/01/93
.0305
/
07/01/93
.0401 - .0402
/
07/01/93
.0404
/
/
07/01/93
.0503
/
07/01/93
lOD .0002
/
/
07/01/93
.0003 - .0004
/
07/01/93
lOF .0305
/
07/01/93
.0314
/
07/01/93
.0320 - .0321
/
07/01/93
.0330
/
/
07/01/93
.0340
/
07/01/93
13C .0201 - .0204
/
07/01/93
18A .0911
/
/
07/01/93
.1601
/
/
07/01/93
.1603
/
/
07/01/93
.1606
/
/
07/01/93
.1609
/
07/01/93
.1720
/
/
07/01/93
.1721
/
07/01/93
772
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August 2, 1993
LIST OF RULES CODIFIED
^
)
)
Citation
AD
AM
RP
With
Chgs
Corr
Eff.
Date
Temp.
Expires
15A NCAC 18A .1722 - .1723
/
/
07/01/93
.1724
/
07/01/93
.1725
/
/
07/01/93
.1726
/
07/01/93
.1727
/
/
07/01/93
.1728
/
07/01/93
.2601
/
/
07/01/93
.2606
/
07/01/93
.2607
/
/
07/01/93
.2618
/
/
07/01/93
.2644
/
07/01/93
.2812
/
/
07/01/93
.3008
/
/
07/01/93
18C .0308
/
/
07/01/93
.1402
/
07/01/93
.1608
/
07/01/93
.2101 - .2102
/
07/01/93
19A .0204
/
07/01/93
19G .0103
/
07/01/93
25 .0213
/
07/01/93
16 NCAC lA .0006
/
/
07/01/93
6C .0202
/
07/01/93
.0310
/
/
07/01/93
17 NCAC 10 .0101
/
07/01/93
.0102- .0103
/
07/01/93
.0201
/
07/01/93
.0203
/
07/01/93
.0401 - .0402
/
07/01/93
.0403 - .0406
/
07/01/93
.0407 - .0408
/
07/01/93
.0501 - .0502
/
07/01/93
.0504 - .0505
/
07/01/93
.0507
/
07/01/93
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LIST OF RULES CODIFIED
Citation
AD
AM
RP
With
Chgs
Corr
Eff.
Date
Temp.
Expires
17 NCAC 10 .0509 -.0510
/
07/01/93
.0511
/
07/01/93
11 .0101
/
07/01/93
.0103
/
07/01/93
.0211
/
07/01/93
.0214
/
07/01/93
.0215
/
07/01/93
.0216 - .0218
/
07/01/93
19A NCAC 2B .0300
/
2D .0600
/
21 NCAC 2 .0206
/
/
07/01/93
.0214
/
07/01/93
.0215
/
/
07/01/93
8G .0205
/
/
09/01/93
14C .0202
/
07/01/93
14G .0002
/
07/01/93
14M .0014 - .0015
/
07/01/93
14N .0113
/
26 .0203
/
07/01/93
.0206
/
/
07/01/93
32A .0001
/
07/01/93
32B .0101
/
07/01/93
.0209 - .0214
/
07/01/93
.0215
/
07/01/93
.0305
/
/
07/01/93
.0309
/
07/01/93
. .0314
/
07/01/93
.0315
/
/
07/01/93
32C .0002 - .0003
/
07/01/93
.0006
/
07/01/93
34D .0101
/
07/01/93
.0202
/
07/01/93
36 .0226
/
/
07/01/93
774
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LIST OF RULES CODIFIED
^
Citation
AD
AM
RP
With
Chgs
Corr
Eff.
Date
Temp.
Expires
21 NCAC 48D .0005
/
07/01/93
58A .0104
/
07/01/93
.0107
/
/
07/01/93
.0110
/
/
07/01/93
.0304
/
07/01/93
.0506
/
/
07/01/93
58C .0207
/
07/01/93
.0219
/
07/01/93
.0305
/
/
07/01/93
.0403
/
07/01/93
58D .0203 - .0204
/
/
07/01/93
.0210
/
07/01/93
)
)
8:9
NORTH CAROLINA REGISTER
August 2, 1993
775
RRC OBJECTIONS
1 he Rules Review Cotnmission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).
RRC Objection 07/15/93
RRC Objection 03/18/93
04/15/93
Eff. 04/23/93
ADMINISTRATION
Department of Administration's Minimum Criteria
/ NCAC 39 .0101 - Purpose RRC Objection 06/17/93
1 NCAC 39 .0301 - E.xceptions to Minimum Criteria RRC Objection 06/17/93
N.C. Low-Level Radioactive Waste Management Authority
1 NCAC 37 .0306 - Preferred Site
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Coastal Management
15A NCAC 7H . 1205 - Specific Conditions
Rule Returned to Agency
Agency Filed Rule for Codification Over RRC Objection
Environmental Health
15A NCAC 18A .0911 - Marinas: Docking Facilities: Other Mooring Areas RRC Objection 06/17/93
Agency Revised Rule Obj. Removed 06/1 7/93
15 A NCAC ISA . 1601 - Definitions RRC Objection 06/17/93
Agency Revised Rule Obj. Removed 06/17/93
15A NCAC ISA .1725 - Water Quality RRC Objection 06/17/93
Agency Revised Rule Obj. Removed 06/17/93
15A NCAC ISA .261S - Cleaning of Equipment and Utensils RRC Objection 06/17/93
Agency Revised Rule Obj. Removed 06/1 7/93
Environmental Management
15A NCAC 2D .0903 - Recordkeeping: Reporting: Monitoring
Agency Revised Rule
15A NCAC 2H .1110 - Implementation
Agency Responded
Agency Responded
Agency Responded
WTP Operators Certification Commission
15A NCAC 8A .0102 - Creation RRC Objection 06/17/93
Agency Repealed Rule Obj. Removed 06/17/93
15A NCAC 8A .0202 - Duties and Requirements RRC Objection 06/17/93
Agency Revised Rule Obj. Removed 06/1 7/93
15A NCA C SB . 0102 - Applying for Examination RRC Objection 06/1 7/93
Agency Revised Rule Obj. Removed 06/17/93
15A NCAC SB . 0109 - Requirement for Notification of Change in Address RRC Objection 06/1 7/93
RRC
Objection
06/17/93
Obj.
Removed
06/17/93
RRC
Objection
02/18/93
Obj.
Cont 'd
03/1S/93
Obj.
Cont'd
05/19/93
Obj.
Cont'd
06/17/93
I
#
#
776
8:9
NORTH CAROLINA REGISTER
August 2, 1993
RRC OBJECTIONS
Agency Revised Rule
I5A NCAC 8B .0201 - Grade I Wastewater Treatment Plant Operator
Agency Revised Rule
15A NCAC 8B .0205 - Definitions
Agency Revised Rule
15A NCAC 8B .0207 - Grade II Collection System Operator
Agency Revised Rule
15A NCAC 88 .0208 - Grade III Collection System Operator
Agency Revised Rule
15A NCAC 8B .0209 - Grade IV Collection System Operator
Agency Revised Rule
ISA NCAC 8B .0210 - Subsurface System Operator
Agency Revised Rule
ISA NCAC 8B .0211 - Land Application/Residuals Operator
Agency Revised Rule
ISA NCAC 8B .0212 - Spray Irrigation Operator
Agency Revised Rule
ISA NCAC 8B .0S02 - Refiinding of Fees
Agency Revised Rule
ISA NCAC 8C .0002 - Rating Scale/Classification/Wastewater Trtmt Facilities
Agency Revised Rule
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
Obj. Removed
06/17/93
HUMAN RESOURCES
Children's Services
10 NCAC 41 Q .0201 - Personnel
Agency Responded
Rule Returned to Agency
Agency Filed Rule for Codification Over RRC Objection
10 NCAC 41 R .0002 - Administration and Organization
RRC Objection
Obj. Cont'd
Eff.
RRC Objection
04/1S/93
OS /1 9/93
06/17/93
07/02/93
07/1S/93
Mental Health: General
10 NCAC 14K .031 S - Treatment/Habilitation Planning and Documentation RRC Objection 06/17/93
Agency Revised Rule Obj. Removed 06/1 7/93
LICENSING BOARDS AND COMMISSIONS
Landscape Architects
21 NCAC 26 .0203 - General Obligations of Practice: Mandatory Standards
Agency Repealed Rule
21 NCAC 26 .020S - Forms of Practice
Rule Returned to Agency
21 NCAC 26 .0207 - Application of Professional Seal
Rule Returned to Agency
21 NCAC 26 .0208 - Improper Conduct
Rule Returned to Agency
21 NCAC 26 .0209 - Unprofessional Conduct
Agency Revised Rule
21 NCAC 26 .0210 - Dishonest Practice
Agency Revised Rule
21 NCAC 26 .0211 - Incompetence
Agency Revised Rule
8:9
NORTH CAROLINA REGISTER
dards RRC Objection
06/17/93
Obj. Removed
06/17/93
RRC Objection
06/17/93
07/1S/93
RRC Objection
06/17/93
07/1S/93
RRC Objection
06/17/93
07/1S/93
RRC Objection
06/17/93
Obj. Removed
07/1S/93
RRC Objection
06/17/93
Obj. Removed
07/1S/93
RRC Objection
06/17/93
Obj. Removed
07/1S/93
August 2, 1993
777
RRC OBJECTIONS
21 NCAC 26 .0301 - Examination
Agency Revised Rule
Medical Examiners
21 NCAC 32B .0315 - Ten Year Qualification
Agency Revised Rule
Real Estate Commission
21 NCAC 58A .0110 - Broker-in-Charge
Agency Revised Rule
21 NCAC 58A .0506 - Salesman to be Supervised by Broker
Agency Revised Rule
21 NCAC 58C .0305 - Course Scheduling
Agency Revised Rule
REVENUE
Ad Valorem Tax Division
17 NCAC 10 .0506 - Certification Requirements for County Appraisers
Agency Revised Rule
17 NCAC 10 .0508 - Certification Requirements for Private Firm Appraisers
Agency Revised Rule
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
06/1 7/93
07/15/93
06/17/93
06/1 7/93
06/17/93
06/17/93
06/17/93
06/17/93
06/17/93
06/17/93
i
RR C Objection 06/1 7/93
Obj. Removed 07/15/93
RR C Objection 06/1 7/93
Obj. Removed 07/15/93
I
i
778
8:9
NORTH CAROLINA REGISTER
August 2, 1993
RULES INVALIDATED BY JUDICIAL DECISION
1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court,
Court of Appeals , Superior Court (when available), and the Office of Administrative Hearings which
invalidate a rule in the North Carolina Administrative Code.
I NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES
Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina
Department of Community Colleges and The North Carolina Department of Administration, Respondent and
The University of Southern California, Intervenor-Respondent (92 DOA 0666).
10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS
Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192).
10 NCAC 3R .1124(0 - ACCESSIBILITY TO SERVICES
Beecher R. Gray, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10
NCAC 3R .1124(f) void as applied in Britthuven, Inc. d/b/a Britthaven of Morganton, Petitioner v. N.C
Department of Human Resources, Division of Facility Services, Certificate of Need Section, Respondent and
Valdese Nursing Home, Inc. , Respondent-Intervenor (92 DHR 1785).
ISA NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES
Julian Mann IH, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of
Marine Fisheries, Respondent (92 EHR 0820).
15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV
Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle),
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina,
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment,
Health, and Natural Resources of the State of North Carolina, William Cobey. as Secretary of the Department
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, arui
Natural Resources, Wayne Babbitt Jr., as Chief of the HIV/STD Control Branch of the North Carolina
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818).
8:9
NORTH CAROLINA REGISTER
August 2, 1993
779
CONTESTED CASE DECISIONS
1 his Section contains the full text of some of the more significant Administrative Law Judge decisions
along with an index to all recent contested cases decisions which are filed under North Carolina 's
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698.
I
AGENCY
CASE
NUMBER
ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
ADVONISTRATION
LMS Express. Inc. v. Adminislration, Div of Purchase &. Contract
Stauffer Information Systems v. Community Colleges & Administration
McLaurin Parking Co. v. Admimstration
ALCOHOLIC BEVERAGE CONTROL COMMISSION
92 DOA 0735
Morgan
06/04/93
92 DOA 0803
West
06/10/93
8:7 NCR 613
92 DOA 1662
Morrison
04/02/93
8:3 NCR 320
Alcoholic Beverage Control Comm. v. Ann Oldham McDowell
Curtis Ray Lynch v. Alcoholic Beverage Control Comm,
Partnership, Phillip Owen Edward
Gary Morgan Neugent
Kirby Ronald Eldridge
Gloria Black McDuffie
Larry Isacc Hailstock
Anthony Ralph Cecchini Jr.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Johnnie L. Baker v. Alcoholic Beverage Control Commission
RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace
Alcoholic Beverage Control Comm. v. Majdi Khalid Wahdan
Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr.
Alcoholic Bev. Control Comm. v. Mild &, Wild. Inc. Sheila Scholz
COMMERCE
Lester Moore V. Weatherization Assistance Program
CRIME CONTROL AND PUBLIC SAFETY
92 ABC 0260
Morgan
04/01/93
92 ABC 0288
Gray
05/18/93
92 ABC 0978
Gray
05/28/93
92 ABC 1086
Becton
03/22/93
92 ABC 1 153
Chess
04/26/93
92 ABC 1476
West
05/26/93
92 ABC 1483
ReiUy
04/07/93
92 ABC 1690
Morgan
06/29/93
92 ABC 1735
Chess
05/07/93
93 ABC 0002
Morrison
07/02/93
93 ABC 0047
Gray
05/28/93
93 ABC 0087
Becton
07/06/93
93 ABC 0125
Reilly
05/13/93
93 ABC 1475
Nesnow
03/23/93
93 COM 0105 Gray
03/08/93
8:9 NCR 785
#
George W. Paylor v. Crime Victims Compensation Comm.
Steven A. Bamer v. Crime Victims Compensation Comm.
Anthony L. Hart v. Victims Compensation Comm.
Jennifer Ayers v. Crime Victims Compensation Comm.
Janie L. Howard v. Crime Victims Compensation Comm.
Isabelle Hyman v. Crime Victims Compensation Comm.
James G. Pellom v. Crime Control & Public Safety
Norman E. Brown v. Victims Compensation Commission
Moses H. Cone Mem Hosp v. Victims Compensation Comm.
Phillip Edward Moore v. Crime Control & Public Safetv'
John Willie Leach v. Crime Victims Compensation Comm.
Nellie R. Mangum v. Crime Victims Compensation Comm.
Constance Brown v. Crime Victims Compensation Comm.
ENVIRONMENT. HEALTH. AlVD NATURAL RESOURCES
91 CPS 1286
Morgan
04/27/93
92 CPS 0453
Nesnow
06/01/93
92 CPS 0937
Chess
03/01/93
92 CPS 1 195
Reilly
03/19/93
92 CPS 1787
Reilly
03/26/93
92 CPS 1807
Morrison
05/24/93
93 CPS 0034
Gray
05/05/93
93 CPS 0141
West
07/07/93
93 CPS 0152
Nesnow
04/02/93
93 CPS 0169
Nesnow
05/20/93
93 CPS 0263
Morrison
05/20/93
93 CPS 0303
Morrison
06/08/93
93 CPS 0351
Reilly
05/24/93
8:3 NCR 327
Charles L. Wilson v. Environment, Health, & Natural Resources
J. Bruce Mulligan v. Environment. Health, & Nalrual Resources
Michael D. Barnes v. Onslow Cty Hlth &. Environment and EHR
William E. Finck v. Environment. Health. & Natural Resources
Utley C. Stallings v. Environment. Health, &. Natural Resources
Safeway Removal, Inc. v. Environment, Health, & Natural Res.
Elizabeth Cily/Pasquotank Cty Mun Airport Aulh v. EHNR
Service Oil Company v. Environment, Health, & Natural Resources
City of Salisbury v. Environment. Health. &i Natural Resources
Willie NL Watford v. Hertford Gates District Health Department
Standard Speciality Contractors. Inc. v, EHNR
91 EHR 0664
Morgan
03/23/93
91 EHR 0773
West
07/13/93
9 1 EHR 0825
Morgan
06/21/93
92 EHR 0040
Gray
06/14/93
92 EHR 0062
Gray
03/15/93
92 EHR 0826
West
03/12/93
92 EHR 1140
Gray
04/13/93
92 EHR 1205
Reilly
05/27/93
92 EHR 1472
Morrison
04/22/93
92 EHR 1600
Chess
03/24/93
92 EHR 1660
Reilly
05/21/93
8:1 NCR 83
t
780
8:9
NORTH CAROLINA REGISTER
August 2, 1993
CONTESTED CASE DECISIONS
^
AGENCY
Shawqi A. Jaher v. Environmenl, Health. &. Natural Resources
Angela Power, Albert Power v. Children's Special Health Svcs.
Erhy Lamar Grainger v. Environment. Health. & Natural Resources
Mustafa E. Essa v. Environment, Health, & Natural Resources
Rosetta Brimage, Vanessa Pack v. Env. Health of Craven County
O.C. Stafford /Larry Haney v. Montgomery Cty. Health Dept.
Bobby Anderson v. Environment, Health, & Natural Resources
Shell Bros. Disl., Inc. v. Environment, Health, & Natural Resources
Hamilton Beach/Proctor-Silex,lnc. v. Environment, Health, & Natrl Res
CASE
DATE OF
NUMBER
ALJ
DECISION
92EHR 1784
Becton
07/07/93
93 EHR 0008
Beclon
03/24/93
93 EHR 0071
Reilly
06/21/93
93 EHR 0146
Gray
03/29/93
93 EHR 0206
Nesnow
05/20/93
93 EHR 0224
Gray
06/07/93
93 EHR 0299
Reilly
06/07/93
93 EHR 0308
Becton
05/18/93
93 EHR 0477
Reilly
06/29/93
PUBLISHED DECISION
REGISTER CITATION
}
)
HUMAN RESOURCES
O.C. Williams v. Human Resources
Ronald Terry Brown v. Human Resources
O.C. Williams v. Human Resources
Michael L. Ray v. Human Resources
Randy Chambliss v. Human Resources
Melvin While v. Human Resources
Jefferson D. Boylenv. Human Resources
Jeffery D. Williams v. Human Resources
Samuel E. Massenberg Jr. v. Human Resources
William A. Dixon v. Human Resources
Gregory L. Washington v. Human Resources
Edwin Clarke v. Human Resources
Dwayne Allen v. Human Resources
Edwin Ivester v. Human Resources
Tyrone Aiken v. Human Resources
Edward E. Brandon v. Human Resources
Darrcll W. Russell v. Human Resources
John Henry Byrd v. Human Resources
Michelle D. Mobley v. Human Resources
Robert E. Watson v. Human Resources
Byron Christopher Williams v. Human Resources
James W. Bell v. Human Resources
Charles W, Stall Jr. v. Human Resources
Eric Stanley Stokes v. Human Resources
David Rollins v. Human Resources
Lyndell Greene v. Human Resources
Leroy Snuggs v. Human Resources
James P. Miller ID v. Human Resources
Jack Dulq V. Human Resources
Larry L. Crowder v. Human Resources
Carlos Bernard Davis v. Human Resources
Ocie C. Williams v. Human Resources
Terrance Freeman v. Human Resources
Timothy Brian EUer v. Human Resources
Charles S. Ferrer v. Human Resources
Ronald H. Lockley v. Human Resources
Rene Thomas Rittenhouse v. Human Resources
Thomas Eidward Williamson v. Human Resources
Roy Chester Robinson v. Human Resources
Timothy Scott Long v. Human Resources
William E. Ingram v. Human Resources
Harold R. Pledger v. Human Resources
Henry Alston Jr. v. Human Resources
Michael W. Bentley v. Human Resources
Dale Robert Stuhre v. Human Resources
Tommy Malone v. Human Resources
James C. Dixon Jr. v. Human Resources
Wallace M. Cooper v. Human Resources
Jarvis N. Price v. Human Resources
Thomas L. Yates v. Human Resources
Robert E. Tarlton Sr. v. Human Resources
Rodney Devard Clemons v. Human Resources
91 CSE
91 CSE
91 CSE
91 CSE
91 CSE
91 CSE
91 CSE
91 CSE
91 CSE
91 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
92 CSE
0036*=
0249
1158*=
1173
1187
1192
1217
1231
1249
1277
0075
0129
0196
0268
1217
1237
1249
1250
1256
1265
1270
1311
1313
1316*'
1334
1346
1360
1361
1374
1396
1404
1405
1411
1414
1416
1418
1421
1422
1423
1445
1450
1455
1460
1512
1516
1520
1522
1527
1531
1535
1536
1539
Morgan
Morgan
Morgan
Morgan
Morgan
Morgan
Morgan
Morgan
Morgan
Morrison
Morgan
Morgan
Morgan
Nesnow
Gray
Gray
Becton
Reilly
Nesnow
Reilly
Nesnow
Nesnow
Mann
Reilly
Morrison
Nesnow
Morrison
Gray
Gray
Reilly
Reilly
Mann
Mann
Reilly
Mann
Nesnow
Nesnow
Reilly
Reilly
Becton
Reilly
Morrison
Becton
Nesnow
Reilly
Mann
Becton
Reilly
Morrison
Gray
Gray
Gray
03/30/93
05/17/93
03/30/93
05/17/93
04/28/93
05/17/93
05/17/93
04/28/93
05/17/93
03/04/93
04/01/93
05/17/93
03/31/93
03/30/93
06/17/93
04/16/93
04/20/93
06/04/93
04/15/93
05/06/93
04/26/93
05/10/93
07/06/93
03/25/93
05/06/93
04/16/93
04/15/93
04/16/93
07/16/93
04/15/93
04/15/93
06/25/93
06/07/93
04/20/93
04/15/93
04/20/93
04/20/93
04/20/93
04/15/93
06/29/93
04/15/93
05/20/93
06/29/93
06/09/93
05/11/93
05/07/93
05/11/93
05/11/93
05/12/93
05/10/93
05/17/93
05/10/93
Consolidated cases.
8:9
NORTH CAROLINA REGISTER
August 2, 1993
781
CONTESTED CASE DECISIONS
AGENCY
James A. Coleman v. Human Resources
Romeo F. Skapple v. Human Resources
Jeffrey L. Garrelt v. Human Resources
Edward Kirk v. Human Resources
William C. Huhbard v. Human Resources
Edward Filch v. Human Resources
David Robineltev. Human Resources
Kit C. Elmore v. Human Resources
Bnan C. Gilmore v. Human Resources
Philip S. Piercy v. Human Resources
Anthony McLaughlin v. Human Resources
Johnny W. Cooke v. Human Resources
Isaac Maxwell v. Human Resources
Donald J. Ray v. Human Resources
Charles Wayne Pierce v. Human Resources
Donna G. Knotls v. Human Resources
McKinley Clybum v. Human Resources
Jeffery D. Williams v. Human Resources
Billy Smith v. Human Resources
Anthony Curry v. Human Resources
Larry W. Golden v. Human Resources
William J. Carter v. Human Resources
Mark W. Dean v. Human Resources
Eric Stanley Stokes v. Human Resources
Patrick Floyd v. Human Resources
Dennis W. Nolan v. Human Resources
Ira Alston Jr. v. Human Resources
Ronald G- Bolden v. Human Resources
Marvin Holley v. Human Resources
Eddie Short v. Human Resources
Michael Tywan Marsh v. Human Resources
Leroy Jones v. Human Resources
Ronald Dean Lowery v. Human Resources
James E. Blakney v. Human Resources
Barbara W. Catlett v. Human Resources
Laurel Langford v. Human Resources
Ida Diane Davis v. Human Resources
Hatsuko Klein v. Human Resources
Leon Barbee v. Human Resources
Dialysis Care of North Carolina. Inc., d/b/a Dialysis Care of
Cumberland County v. Human Resources, Division of Facility
Services. Certificate of Need Section, and Bio-Medical
Applications of FayetteviUe d/li/a Fayelteville Kidney Center.
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications
of North Carolina, Inc., d/b/a BMA of Raeford and Webb-
Lohavichan Rentals
Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of
Cumberland County v. Human Resources, Division of Facility
Services, Certificate of Need Section, and Bio-Medical
Applications of Fayelteville d/b/a FayetteviUe Kidney Center,
Webb-Lohavichan-Mellon Rentals. Bio-Medical Applications
of North Carolina, Inc.. d/b/a BMA of Raeford and Webb-
Lohavichan Rentals
Bio-Medical Applications of North Carolina. Inc.. d/b/a BMA
of Raeford. Webb-Lohavichan-Melton Rentals, Bio-Medical
Applications of North Carolina, Inc., d/b/a BMA of Fayelteville
d/b/a Fayelteville Kidney Center and Webb-Lohavichan Rentals
v. Human Resources. Division of Facility Services, Certificate of
Need Section and Dialysis Care of North Carolina. Inc., d/b/a
Dialysis Care of Hoke County
Renal Care of Rocky Mount, Inc. v. Human Resources. Division of
Facility Services, Certificate of Need Section, and Bio-Medical
Applications of North Carolina, Inc.. d/b/a BMA of Tarboro.
Rocky Mount Nephrology Associates. Inc.. Bio-Medical
Applications of North Carolina. Inc., d/b/a BMA of Rocky Mount
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center
Associates
James H. Hunt Jr. v. Division of Medical Assistance
CASE
DATE OF
NUMBER
ALJ
DECISION
92 CSE 1540
Reilly
05/11/93
92 CSE 1545
Gray
04/26/93
92 CSE 1557
Gray
04/22/93
92 CSE 1560
Gray
06/29/93
92 CSE 1562
Mann
05/12/93
92 CSE 1572
Reilly
05/11/93
92 CSE 1573
Mann
07/14/93
92 CSE 1575
Gray
07/16/93
92 CSE 1576
Gray
04/26/93
92 CSE 1577
Gray
07/16/93
92 CSE 1582
Gray
06/29/93
92 CSE 1585
Becton
05/11/93
92 CSE 1589
Reilly
04/26/93
92 CSE 1592
Mann
05/19/93
92 CSE 1596
Morrison
07/14/93
92 CSE 1611
Morrison
07/16/93
92 CSE 1623
Morrison
05/20/93
92 CSE 1626
Mann
05/19/93
92 CSE 1629
Reilly
03/25/93
92 CSE 1631
Reilly
03/25/93
92 CSE 1633
Reilly
03/25/93
92 CSE 1637
Nesnow
05/19/93
92 CSE 1638
Reilly
07/15/93
92 CSE 1652*^
Reilly
03/25/93
92 CSE 1663
Reilly
05/20/93
92 CSE 1670
Morrison
06/25/93
92 CSE 1703
Becton
06/16/93
92 CSE 1706
Mann
06/25/93
92 CSE 1713
Mann
06/08/93
92 CSE 1714
West
07/15/93
92 CSE 1716
Gray
06/17/93
92 CSE 1718
Gray
06/17/93
92 CSE 1771
West
07/15/93
92 CSE 1779
Nesnow
05/13/93
92 DCS 0577
West
03/15/93
92 DCS 1 181
Gray
05/04/93
92 DCS 1200
Gray
03/29/93
92 DCS 1271
Reilly
05/05/93
92 DHR 0658
Morrison
04/30/93
92DHR 1109»*
Morgan
06/22/93
PUBLISHED DECISION
REGISTER CITATION
92 DHR 1110** Morgan 06/22/93
92 DHR 1116** Morgan 06/22/93
92 DHR 1120 Gray
06/18/93
I
#
8:5 NCR 441
8:4 NCR 392
8:8 NCR 687
8:8 NCR 687
8:8 NCR 687
8:8 NCR 687
I
92 DHR 1145
Becton
05/13/93
8:5 NCR 443
782
8:9
NORTH CAROLINA REGISTER
August 2, 1993
CONTESTED CASE DECISIONS
AGENCY
Barbara Jones v. Human Resources
Joyce P. Williams v. Human Resources
Snoopy Day Care, Diane Hamby v. Child Day Care Licensing
Cynthia Reed v. Human Resources
Helm's Rest Home. Ron J. Schimpf/Edith H. Wilson v. Human Resources
Jo Ann Kinsey v. NC Memorial Hospital Betty Hullon, Volunteer Svc.
Amy Clara Williamson v- NC Mem Hosp Betty Hutlon. Volunteer Svc.
Betty Butler V. Human Resources
Wayne Sanders and Brenda Sanders v. Human Resources
Samuel Benson v. Office of Admin. Hearings for Medicaid
Fannie Lewis v. Human Resources
CASE
DATE OF
NUMBER
ALJ
DECISION
92DHR 1192
Nesnow
04/02/93
92 DHR 1275
Gray
03/15/93
92 DHR 1320
Morgan
05/21/93
92 DHR 1329
Chess
05/10/93
92 DHR 1604
Reilly
05/10/93
92 DHR 1612
Chess
03/08/93
92 DHR 1613
Chess
03/08/93
92 DHR 1614
Chess
03/09/93
92 DHR 1699
Reilly
06/07/93
93 DHR 0010
Becton
03/11/93
93 DHR 0379
Gray
06/28/93
PUBLISHED DECISION
REGISTER CITATION
8:3 NCR 313
8:7 NCR 632
INSURANCE
Carolyn M. Hair v. St Employees Comprehensive Major Medical
JUSTICE
Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Slds. Comm.
Colin Carlisle Mayers v. Sheriffs' Ed. & Training Stds. Comm.
Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Stds. Comm.
George Wilton Hawkins v. Criminal Justice Ed. & Training Stds. Comm.
Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm.
Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm.
Richard Zander Frink v. Criminal Justice Ed. & Traning Slds. Comm.
Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm.
Mark TTiomas v. Sheriffs' Ed, & Training Standards Commission
George Wilton Hawkins v. Sheriffs' Ed. & Training Stds. Comm.
N.C. Alarm Systems Licensing Bd. v. Eric Hoover
N.C. Alarm Systems Licensing Bd. v. Vivian Darlene Gaither
William B. Lipscomb v. Private Protective Services Board
LABOR
92 INS 1464
Chess
03/10/93
92 DOJ 0656*'
West
06/22/93
92 DOJ 0761
Morrison
05/10/93
92 DOJ 0829 »'
West
06/22/93
92 DOJ 1081*'
Morgan
07/09/93
92 DOJ 1088
Morrison
03/16/93
92 DOJ 1367
Chess
04/01/93
92 DOJ 1465
Nesnow
05/28/93
92 DOJ 1756
Gray
03/23/93
93 DOJ 0151
West
04/21/93
93 DOJ 0156*'
Morgan
07/09/93
93 DOJ 0201
Becton
07/12/93
93 DOJ 0202
Chess
05/10/93
93 DOJ 0458
Morrison
06/01/93
Greensboro Golf Center, Inc. v. Labor
Ronald Dennis Hunt v. Labor
Jeffrey M. McKinney v. Labor
MORTUARY SCIENCE
92 DOL 0204
Nesnow
04/15/93
92 DOL 1319
Morgan
06/17/93
92 DOL 1333
Morrison
06/21/93
Board oi' Mortuary Science v. Triangle Funeral Chapel, Inc.
STATE PERSONNEL
92 BMS 1169
Reilly
04/29/93
8:4 NCR 396
Frances K. Pate v. Transportation
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson. James D. Fishcl v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart.
James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Bemie B. Kellly v. Correction
Brenda G, Mitchell v. Correction
Clayton Brewer v. North Carolina Slate University
Sherman Daye v. Transportation
Donnie M. White v. Correction
Gregory Samuel Parker v. Environment. Health, Sl Natural Resources
Rence E. Shepherd v. Winston-Salem Slate University
Eva Dockery v. Human Resources
Lee P. Crosby v. Michael Kelly, William Meyer and EHR
Gregory Samuel Parker v. Environment. Health, & Natural Resources
Willie Granville Bailey v. Winston-Salem State University
Julia Spinks v. Environment, Health, & Natural Resources
James B. Price v. Transportation
88 OSP 0340
Morrison
05/03/93
90 OSP 1064*"
Mann
05/04/93
90 OSP 1065*'
Mann
05/04/93
90 OSP 1066**
Mann
05/04/93
90 OSP 1067**
Mann
05/04/93
90 OSP 1068**
Mann
05/04/93
91 OSP 0344
Morrison
05/27/93
91 OSP 0625
West
03/08/93
8:1 NCR 75
91 OSP 0941
West
04/02/93
8:3 NCR 306
91 OSP 0951
West
05/07/93
91 OSP 1236
Morgan
04/05/93
91 OSP 1344*'
Chess
05/20/93
91 OSP 1391
Morgan
04/28/93
92 OSP 0010
Chess
05/03/93
92 OSP 0056
Gray
06/07/93
92 OSP 0188**
Chess
05/20/93
92 OSP 0285
Morrison
03/10/93
92 OSP 0313
Becton
04/12/93
8:4 NCR 382
92 OSP 0375
Gray
04/13/93
8:9
NORTH CAROLINA REGISTER
August 2, 1993
783
CONTESTED CASE DECISIONS
AGENCY
I. Cary Nailling v. UNC-CH
Deborah Barber v. Correction
Laveme B. Hill v. Transportation
Jimmy D. Wilkins v. Transporiaiion
Sarah W. Brilt v. Human Resources. C.A. Dillon School, CPS
Herman James Goldstein v. UNC-Chapel Hill et al.
Glinda C. Smith v. Wildlife Resources Commission
Cindy G. Bartlett v. Correction
William Kenneth Smith Jr. v. Broughlon Hospital (Human Resources)
Larr> O. Nobles v. Human Resources
Willie Thomas Hope v. Transportation
David Scales v. Correction
Suzanne Ransley Hill v. Environment. Health, & Nat. Res.
Herman James Goldstein v. UNC-Chapel Hill et al.
John B. Sauls v. Wake County Health Department
Gilbert Jaeger v. Wake County AJcoholism Treatment Center
Joseph Henry Bishop v. Environment, Health. &. Natural Res.
Willie L. Hudson V. Correction
Brenda K. Campbell v. Employment Security Commission
Christie L. Guthrie v. Environment. Health. & Natural Resources
James B. Price v. Transportation
Jerry L. Jones v. N.C.S.U. Physical Plant
Belly Bradsherv. UNC-CH
Jamal Al Bakkat-Morris v. Glenn Sexton (DSS)
Brenda Kay Barnes v. Human Resources
Larry G. Riddle v. Correclion, Division of Prisons
Stevie E. Dunn v. Polk Youth Center
Buford D. Vieregge Jr. v. N.C. State University, University- Dining
Karen Canter v. Appalachian State University
Barbara A. Johnson v. Human Resources
Carrie P. Smith v. County of Stanly
George W. Allen v. Human Resources. Correction, Agri &. EHNR
William G. Fisher v. St Bd of Ed. Albermarle City Schools & Bd of Ed
Grace Jean Washington v, Caswell Center
Clifton E. Simmons v. Correction
Willie L. James v. Caswell Center
Ir^.'ing S. Rodgers v. C.A. Dillon. Division of Youth Services
Michael L. Pegram v. Correction
Jerr> D. Doss Sr. v. Correction
Debbie Renee Robinson v. Correction
Michael L. Pegram v. Correction
CASE
DATE OF PUBLISHED DECISION
NUMBER
AL,f
DECISION REGISTER CITATION
92 OSP 0394
Becton
04/20/93
92 OSP 0396
Chess
03/04/93
92 OSP 0431*"
West
03/08/93
92 OSP 0432*"
West
03/08/93
92 OSP 0455
West
05/26/93 8:6 NCR 484
92 OSP 0634
Morrison
05/04/93
92 OSP 0653
Morrison
03/12/93
92 OSP 0671
Morgan
06/08/93
92 OSP 0684
Becton
05/10/93
92 OSP 0732
Mann
04/23/93
92 OSP 0947
Morgan
03/23/93
92 OSP 0989
Chess
06/24/93
92 OSP 0992
ReiUy
03/18/93 8:2 NCR 224
92 OSP 1047
Morrison
05/04/93
92 OSP 1142
Reilly
03/08/93 8:1 NCR 88
92 OSP 1204
Reilly
05/10/93
92 OSP 1243
Reilly
03/05/93
92 OSP 1468
Becton
05/26/93
92 OSP 1505
Morrison
03/17/93
92 OSP 1555
Becton
05/31/93
92 OSP 1657
Mann
03/19/93
92 OSP 1661
Chess
07/06/93
92 OSP 1733
Becton
03/30/93
92 OSP 1741
Becton
03/24/93
92 OSP 1768
Morrison
03/17/93
92 OSP 1774
Gray
04/26/93
92 OSP 1789
Becton
04/19/93
92 OSP 1796
Morrison
05/27/93
93 OSP 0079
Reilly
06/15/93
93 OSP 0103
Morrison
03/17/93
93 OSP 0109
Becton
04/01/93
93 OSP 0111
Reilly
04/16/93
93 OSP 0134
Becton
04/20/93
93 OSP 0153
Morgan
06/03/93
93 OSP 0159
Morrison
04/21/93
93 OSP 0171
Morgan
05/27/93
93 OSP 0177
West
04/21/93
93 OSP 0275«*
Reilly
06/28/93
93 OSP 0287
Gray
05/17/93
93 OSP 0383
Nesnow
06/07/93
93 OSP 0472**
Reilly
06/28/93
c
#
STATE TREASURER
Herman D, Brooks v. Bd of Trustees rTeachers' & St Emp Ret Sys 91 DST 0566
Henrietta Sandlin v. Teachers" & State Emp Comp Major Medical Plan 92 DST 0305
Mary Alyce Carmichael v. Bd-Trustees/Teachers' & St Emp Ret Sys 92 DST 1506
Gray 04/13/93
Morgan 04/12/93
Chess 04/08/93
TRANSPORTATION
\'ates Construction Co., Inc. \'. Transportation
UNIVERSITY OF NORTH CAROLINA HOSPITALS
Jacqueline Florence V. UNC Hospitals
92 DOT 1800 Morgan 03/25/93
93 UNC 0355
Becton
06/16/93
#
784
8:9
NORTH CAROLINA REGISTER
August 2, 1993
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF EDGECOMBE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
93 ABC 0087
N.C. ALCOHOLIC BEVERAGE CONTROL
COMMISSION,
Petitioner,
MAJDI KHALID WAHDAN,
T/A PRESTO FOOD STORE #6,
Respondent.
RECOMMENDED DECISION
This matter was heard before Brenda B. Becton, Administrative Law Judge, on May 19, 1993, in
Williamston, North Carolina.
APPEARANCES
Petitioner: Larry S. Height, Chief Agency Legal
Specialist, N.C. ABC Commission, Raleigh, North Carolina.
Respondent: Jesse Matthewson Baker, Attorney, Tarboro,
North Carolina.
ISSUES
L Whether the Respondent violated the ABC laws by:
Permittee knowingly selling alcoholic beverages to an intoxicated person on
the licensed premises on or about October 9, 1992 at 11:11 p.m., in viola-
tion of section 18B-305(a) of the North Carolina General Statutes.
2. What penalty, if any, should be imposed under section 18B-I04 of the North Carolina General
Statutes?
EXHIBITS
The exhibits listing was omitted from this publication. You may obtain a copy by contacting this
office.
FINDINGS OF FACT
From official documents in the file, sworn testimony of the witnesses, and other competent and
admissible evidence, it is found as a fact that:
L Majdi Khalid Wahdan owns and operates Presto Food Store #6 which is located in Edgecombe
County, North Carolina.
2. The Respondent holds on premises beer and off-premises fortified and unfortified wine permits.
8:9
NORTH CAROLINA REGISTER
August 2, 1993
785
CONTESTED CASE DECISIONS
3. On October 1 1 , 1992, at approximately 1 1 :00 p.m. John J. Simmons, an ALE agent, went to Presto
Food Store #6 to conduct a surveillance of its operation.
4. Presto Food Store #6 is located in shopping strip that contains several other businesses, including two
barbershops and an ABC outlet.
5. Agent Simmons parked in the parking lot near the ABC outlet, approximately fifteen feet away from
the entrance to the Presto Food Store. The store was well lighted both inside and outside and
Simmons observed Mr. Wahdan performing several work related tasks.
6. Agent Simmons observed a small passenger car with three black male occupants situated about twenty
feet from the store and five feet away from where he was parked.
7. Agent Simmons saw one of car's occupants get out and recognized him as being Vinson Pender.
8. Mr. Pender's eyes were bloodshot and his clothes were disarranged. He exited the car very slowly
and had difficulty maintaining his balance as he walked toward the store.
9. Mr. Pender entered the Presto Food Store and walked to the beer cooler where he stood swaying for
a few moments before he opened the cooler and selected two 40 ounce bottles of St. Ives.
10. Agent Simmons watched as Mr. Pender and Mr. Wahdan appeared to have a conversation and then
money was exchanged. Mr. Wahdan placed Mr. Pender's purchase in a brown bag.
11. At the time that Mr. Pender entered the Presto Food Store, Mr. Wahdan was busy cleaning up in
preparation for closing the store for the night.
12. There are several rows of shelves between the counter where Mr. Wahdan was working and the beer
cooler.
13. Mr. Wahdan did not see Mr. Pender swaying back and forth in front of the beer cooler.
14. Mr. Pender is a regular customer at the Presto Food Store and Mr. Wahdan testified that Mr.
Pender's eyes are always red.
15. When Mr. Pender brought his selection to the checkout counter he said "good evening" to Mr.
Wahdan.
16. The checkout counter in the Presto Food Store is approximately two feet wide.
17. Mr. Wahdan watched Mr. Pender search through his wallet for the smallest denomination of money
to pay for the beer which cost $1.89 for each bottle.
18. Mr. Wahdan testified that he did not detect any odor of alcohol emanating from Mr. Pender.
19. After Mr. Pender left, Mr. Wahdan closed the store.
20. When Mr. Pender returned to the car in the parking lot. Agent Simmons asked him for some
identification. At that time, Simmons observed that Mr. Pender's speech was slurred, making it
difficult to understand him, and he detected the odor of alcohol.
21 . When Mr. Wahdan came out of the store. Agent Simmons approached him and had him observe while
he asked Mr. Pender to touch his nose with his left index finger several times; Mr. Pender touched
his left cheek. Simmons repeated the request with respect to Mr. Pender's right index finger, and
Mr. Pender touched his right cheek.
786 8:9 NORTH CAROLINA REGISTER August 2, 1993
CONTESTED CASE DECISIONS
")
)
J
22. Mr. Pender refused to blow into a AJco-Sensor.
23. Agent Simmons was of the opinion that Mr. Pender was extremely intoxicated.
24. There was no testimony that Agent Simmons observed Mr. Wahdan watching Mr. Pender as he
staggered and swayed about the store.
25. There is no evidence regarding how close Agent Simmons was to Mr. Pender when he was first able
to detect the odor of alcohol.
CONCLUSIONS OF LAW
1. The Petitioner has the burden of proof in this contested case, and one of the elements that the
Petitioner must prove is that the Respondent knowingly sold alcohol to an intoxicated person. In
order to meet this burden, the Petitioner must establish by the greater weight of the evidence that Mr.
Pender was intoxicated and that the Respondent knew or should have known that Mr. Pender was
intoxicated. See, Hutchens \\ Hankins , 63 N.C. App. 1, 303 S.E.2d 584 (1983).
2. Vinson Pender was intoxicated within the meaning of the term as it is used in Chapter 18B of the
North Carolina General Statutes at and after 11:09 p.m. on October 9, 1992 when he entered the
Respondent's store. Presto Food Store.
3. In order to establish that Mr. Wahdan knew or should have known that Mr. Pender was intoxicated,
the Petitioner must present evidence that Mr. Wahdan observed Mr. Pender at a time when Mr.
Pender's conduct or appearance was such that he was obviously intoxicated. The only evidence on
this point is that Agent Simmons observed Mr. Wahdan and Mr. Pender apparently having some
conversation while the beer sale was being consummated. There is no evidence that Mr. Pender was
close enough to Mr. Wahdan for him to have detected an odor of alcohol. There is no evidence that
Mr. Pender's speech was slurred, if and when he said anything to Mr. Wahdan while he was paying
for the beer. There is no evidence that Mr. Pender was swaying back and forth while he was at the
checkout counter. And finally, there is no evidence that Mr. Wahdan was looking at Mr. Pender at
the times that Agent observed that Mr. Pender was having difficulty maintaining his balance.
4. The Petitioner has failed to prove by the greater weight of the evidence that the Respondent violated
North Carolina General Statutes section I8B-305(a) by knowingly selling alcohol to an intoxicated
person.
RECOMMENDED DECISION
The N.C. Alcoholic Beverage Commission will make the Final Decision in this contested case. It
is recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and
that the Commission not take action against the permittee in this contested case.
ORDER
It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General
Statutes section 150B-36(b).
NOTICE
Before the the agency makes the FINAL DECISION, it is required by North Carolina General Statutes
section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION,
and to present written arguments to those in the agency who will make the final decision.
8:9 NORTH CAROLINA REGISTER August 2, 1993 787
CONTESTED CASE DECISIONS
The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the
Final Decision on all parties and to furnish a copy to the Parties' attorney of record.
This the 6th day of July, 1993.
r
Brenda B. Becton
Administrative Law Judge
%
t
788 8:9 NORTH CAROLINA REGISTER August 2, 1993
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these,
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major
department in the North Carolina executive branch of government has been assigned a title number.
Titles are further broken down into chapters which shall be numerical in order. The other two,
subchapters and sections are optional subdivisions to be used by agencies when appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER
1
Administration
Architecture
2
2
Agriculture
Auctioneers
4
3
Auditor
Barber Examiners
6
4
Economic & Community Development
Certified Public Accountant Examiners
8
5
Correction
Chiropractic Examiners
10
6
Council of State
General Contractors
12
7
Cultural Resources
Cosmetic Art Examiners
14
8
Elections
Dental Examiners
16
9
Governor
Dietetics/Nutrition
17
10
Human Resources
Electrical Contractors
18
11
Insurance
Electrolysis
19
12
Justice
Foresters
20
13
Labor
Geologists
21
14A
Crime Control & Public Safety
Hearing Aid Dealers and Fitters
22
15A
Environment, Health, and Natural
Landscape Architects
26
Resources
Landscape Contractors
28
16
Public Education
Marital and Family Therapy
31
17
Revenue
Medical Examiners
32
18
Secretary of State
Midwifery Joint Committee
33
19A
Transportation
Mortuary Science
34
20
Treasurer
Nursing
36
*21
Occupational Licensing Boards
Nursing Home Administrators
37
22
Administrative Procedures
Occupational Therapists
38
23
Community Colleges
Opticians
40
24
Independent Agencies
Optometry
42
25
State Personnel
Osteopathic Examination & Reg. (Repealed)
44
26
Administrative Hearings
Pharmacy
46
Physical Therapy Examiners
48
Plumbing, Heating & Fire Sprinkler Contractors
50
Podiatry Examiners
52
Practicing Counselors
53
Practicing Psychologists
54
Professional Engineers & Land Surveyors
56
Real Estate Commission
58
"Reserved"
59
Refrigeration Examiners
60
Sanitarian Examiners
62
Social Work
63
Speech & Language Pathologists & Audiologists
64
Veterinary Medical Board
66
Note: Title 21 contains the chapters of the various occupational licensing boards.
8:9
NORTH CAROLINA REGISTER
August 2, 1993
789
CUMULATIVE INDEX
CUMULATIVE INDEX
(April 1993 - March 1994)
Pages Issue
1 - 92 1 - April
93 - 228 2 - April
229 - 331 3 - May
332 - 400 4 - May
401 - 455 5 - June
456 - 502 6 - June
503 - 640 7 - July
641 - 708 8 - July
709 - 792 9 - August
f
Unless otherwise identified, page references in this Index are to proposed rules.
ADMINISTRATION
Administration's Minimum Criteria, 5
Low-Level Radioactive Waste Management Authority, 232
ADMINISTRATIVE HEARINGS
Civil Rights Division, 370
General, 366
Rules Division, 367
AGRICLXTLUE
N.C. State Fair, 506
Plant Industry, 513
Veterinary Division, 515
CO.\CVIERCE
Alcoholic Be\erage Control Commission, 408, 711
Banking Commission, 408
Savings Institutions Division: Savings Institutions Commission, 461
ENVIRONMENT, HEALTH, .4ND NATLTIAL RESOLTiCES
Coastal Management, 279, 571
Departmental Rules, 465
Environmental .Management, 210, 556, 658
Health Services. 283, 335. 425, 465, 572, 709, 762
Marine Fisheries, 28, 568
NPDES Permit, 710
Soil and Water Conser\ation. 214
Wildlife Resources Commission. 32. 663
Zoological Park, 337
FINAL DECISION LETTERS
Votin2 Rights Act, 4, 407, 460
f
t
790 8:9 NORTH CAROLINA REGISTER August 2, 1993
CUMULATIVE INDEX
"^
GOVERNOR/LT. GOVERNOR
Executive Orders, 1, 93, 229, 332, 401, 456, 641
HUMAN RESOURCES
Deaf and Hard of Hearing, Services for the. 650
Facility Services, 94
Medical Assistance, 25, 414, 553, 712
Medical Care Commission, 644
Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516
Social Services Commission, 237, 733
INSURANCE
Actuarial Services, 555, 657
Medical Database Commission, 463, 737
JUSTICE
Alarm Systems Licensing Board, 761
Attorney General, Office of the, 28
Criminal Justice Education and Training Standards Commission, 253
Criminal Justice Standards Division, 241
Private Protective Services Board, 252
Sheriffs' Education and Training Standards Commission, 738
LABOR
OSHA, 97, 231, 278
LICENSING BOARDS
Architecture, 43
Dental Examiners, State Board of, 763
Foresters, Registration for, 674
Geologists, Board of, 285
Medical Examiners, Board of, 591
Mortuary Science, Board of, 45, 342
Nursing Home Administrators, 346
Pharmacy, Board of, 47, 354
Physical Therapy Examiners, 53, 767
Plumbing, Heating and Fire Sprinkler Contractors, 360
Real Estate Commission, 53, 364
Social Work, Certification Board for, 428
LIST OF RULES CODIFIED
List of Rules Codified, 61, 290, 432, 593, 769
PUBLIC EDUCATION
Elementary and Secondary Education, 427, 470
STATE PERSONNEL
Office of State Personnel, 286
STATE TREASURER
Retirement Systems, 337
TAX REVIEW BOARD
Orders of Tax Review, 503
8:9 NORTH CAROLINA REGISTER August 2, 1993 791
CUMULATIVE INDEX
TRANSPORTATION
Highways, Division of, 669
#
t
t
792 8:9 NORTH CAROLINA REGISTER August 2, 1993
NORTH CAROLINA ADMEVISTRATIVE CODE
The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the full publication including supplements can be
purchased for seven hundred and fifty dollars ($750.00). Individual volumes may also be purchased with
supplement service. Renewal subscriptions for supplements to the initial publication are available at
one-half the new subscription price.
PRICE LIST FOR THE SUBSCRIPTION YEAR
Volume
Title
Chapter
Subject
New Total
Subscription* Quantity Price
1 -53
Full Code
1
2
2
3
4
4
5
5
6
7
8
9
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
11
12
13
13
13
14A
15A
15A
15A
15A
15A
1 - 38
1 -24
25 - 52
1 -4
1 -2
3 - 20
1 - 2
3 -4
1 -4
1 - 12
1 -9
1 -4
I -2
3A - 3K
3L- 3R
3S- 3W
4-6
7
8 -9
10
II - 14
15 - 17
18
19 - 30
31 - 33
34 -41
42
43 - 51
1 - 19
1 - 12
1 - 6
7
8 - 16
1 - 11
1 - 2
3 -6
7
8 - 9
10
All titles
Administration
Agriculture
Agriculture
Auditor
ECD (includes ABC)
ECD
Correction
Correction
Council of State
Cultural Resources
Elections
Govemor/Lt. Govemo
Human Resources
Human Resources
Human Resources
(includes CON)
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Human Resources
Insurance
Justice
Labor
OSHA
Labor
Crime Control and
Public Safety
EHNR (includes EMC
EHNR
Coastal Management
EHNR
Wildlife
$750.00
1
90.00
2
75.00
3
75.00
4
10.00
5
45.00
6
90.00
7
60.00
8
30.00
9
60.00
10
10.00
11
r 45.00
12
30.00
13
90.00
14
45.00
15
30.00
16
30.00
17
30.00
18
30.00
19
30.00
20
60.00
21
45.00
22
75.00
23
90.00
24
30.00
25
60.00
26
45.00
27
90.00
28
90.00
29
90.00
30
30.00
31
45.00
32
45.00
33
45.00
34
) 90.00
35
45.00
36
45.00
37
30.00
38
45.00
Continued
New Total
Volume Title Chapter Subject Subscription* Quantity Price
EHNR 90.00
EHNR
(includes Breathalizer) 75.00
Education 30.00
Revenue 75.00
Revenue 60.00
Secretary of State 30.00
Transportation 90.00
Treasurer 45.00
Licensing Boards 75.00
Licensing Boards 75.00
Licensing Boards
Administrative Procedures75.00
Community Colleges 10.00
Independent Agencies 10.00
State Personnel 60.00
Administrative Hearings 10.00
39
15A
11 - 18
40
15A
19- 26
41
16
1 - 6
42
17
1 - 6
43
17
7- 11
44
18
1 - 8
45
19A
1 - 6
46
20
1 - 9
47
21
1 - 16
48
21
17 - 37
49
21
38 - 70
22
1 - 2
50
23
1 -2
51
24
1 - 3
52
25
53
26
1 - 4
Subtotal
(North Carolina subscribers add 6% sales tax)
Total
(Make checks payable to Office of Administrative Hearings.)
This price includes the title in its current form plus supplementation for the subscription year.
i
MAIL TO:
OFFICE OF ADMINISTRATIVE HEARINGS
POST OFFICE DRAWER 27447
RALEIGH, NORTH CAROLINA 27611-7447
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NORTH CAROLINA REGISTER
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D Please enter my subscription for the North Carolina Register to start with the issue.
($105.00)/year subscription) (N.C. Subscribers please add sales tax.)
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ADDRESS
i
CITY
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ZIP
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CITY
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Raleigh. North Carolina 27611-7447
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